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Ho Chor Ming And Others v Hong Kong Chiu Chow Po Hing

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date03 August 2018
Neutral Citation[2018] HKCFI 1812
Judgement NumberHCMP506/2013
Citation[2018] 3 HKLRD 859
Year2018
Subject MatterMiscellaneous Proceedings
CourtCourt of First Instance (Hong Kong)
HCMP506C/2013 HO CHOR MING AND OTHERS v. HONG KONG CHIU CHOW PO HING

HCMP 506/2013

[2018] HKCFI 1812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 506 OF 2013

____________________

IN THE MATTER OF Hong Kong Chiu Chow Po Hing Buddhism Association Limited
and
IN THE MATTER OF Section 570 of the Companies Ordinance (Cap 622) (formerly Section 114B of the Companies Ordinance (Cap 32)) and Section 21L of the High Court Ordinance (Cap 4)

____________________

BETWEEN
HO CHOR MING 1st Applicant
CHENG KWOK FAI SAMMOND 2nd Applicant
CHENG KWOK KIT EDWIN 3rd Applicant
CHENG CHO MING 4th Applicant
CHENG CHOR LEUNG 5th Applicant
CHIU CHI KAI DICK 6th Applicant
CHIU SAI CHIU 7th Applicant
YEUNG SIU KWAN 8th Applicant
and
HONG KONG CHIU CHOW PO HING Respondent
BUDDHISM ASSOCIATION LIMITED

____________________

Before: Hon G Lam J in Chambers
Date of Written Submissions: 29 June, 13, 18 and 23 July 2018
Date of Decision on Costs: 3 August 2018

_____________________________

DECISION ON COSTS

______________________________

1. In my decision dated 8 June 2018, I made orders pursuant to the Association’s application, which was opposed by the Receiver, that (1) the Receiver do provide the Association with copies of his and the Solicitors’ bills; (2) the Association do file and serve a statement of objections within 28 days thereafter; (3) the assessment in relation to the items to which objection is taken be re‑opened and be referred to a Master for assessment in which the Association do have leave to participate; and (4) there be liberty to apply. As regards costs, I directed the Association and the Receiver, failing agreement, to lodge written submissions. This is my decision on costs based on the submissions made as directed.

2. The Association seeks an order that the Receiver do pay the Association’s costs (without indemnity from the Association’s assets) with a certificate for two counsel. In contrast, the Receiver submits that his costs should be paid out of the assets of the Association and that, in any event, he should not be required to pay the Association’s costs.

3. On behalf of the Association, it is acknowledged that it is a basic principle of receivership that a receiver is entitled to be indemnified in respect of his costs and expenses out of the assets in his hands as receiver: Capewell v Revenue and Customs Commissioners and Another [2007] 1 WLR 386, at para 21. This is the general position applicable where the receiver is going about his business of performing his functions and duties as a receiver. A receiver is entitled to an indemnity in respect of expenses incurred in the due discharge of his duties, and that includes the expenses of defending a legal proceeding brought against him as receiver and which is defended by him for the benefit of the estate. Butwhere a receiver has sought to set up or defend his own private interest against the estate, the position, as in the case of a trustee, is in my view different: Lewin on Trusts (19th ed) para 27‑114. It is stated in Kerr & Hunter on Receivers and Administrators (20th ed) at para 10-10 (footnotes omitted):

“If any extraordinary expenses have been incurred by the receiver without the approbation of the court, allowances for them will not generally be sanctioned, unless the estate has been benefited thereby. … A receiver, appointed and acting in proceedings for the administration of an estate, is not entitled to indemnity in respect of the costs of defending a purely personal action against the receiver, having no relation to the estate, except so far as the acts complained of were done by the receiver while acting as an officer of the court: for no benefit to the estate...

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