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Liu Xian Feng Sam And Another v Liu Bo And Others

Judgment Cited authorities 1 Cited in 10 Precedent Map Related
Vincent
Judgment Date17 May 2006
Year2006
Citation[2006] 4 HKLRD 33
Judgement NumberCACV54/2006
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV000054/2006 LIU XIAN FENG SAM AND ANOTHER v. LIU BO AND OTHERS

cacv 54/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 54 of 2006

(on appeal from HCA NO. 5474 of 2001)

BETWEEN

　 LIU XIAN FENG SAM (劉先鋒) 1st Plaintiff
　 KING STAR COMPUTER INC. 2nd Plaintiff
　 and　 　
　 LIU BO (劉波) 1st Defendant
　 EASY SUPER LIMITED 2nd Defendant
　 FIRST VICTORY INTERNATIONAL LIMITED 3rd Defendant

Before: Hon Le Pichon JA and Sakhrani J in Court

Date of Hearing: 9 May 2006

Date of Judgment: 9 May 2006

Date of Handing Down Reasons for Judgment: 17 May 2006

__________________________

REASONS FOR JUDGMENT

__________________________

Hon Le Pichon JA:

1. This was an appeal from the order of Yam J dated 15 December 2005 varying an earlier mareva injunction and allowing the first defendant to withdraw the sums of $600,000 and $23,800 for legal costs and living expenses. Whilst the plaintiffs’ appeal related to both sums in question, at the hearing, Mr Chain who appeared for the plaintiffs was content not to challenge that part of the order that related to living expenses of $23,800. The appeal was therefore treated as relating solely to the $600,000 in respect of legal costs. At the conclusion of the appeal hearing, the appeal was allowed with reasons to be given later which we now do.

2. The proceedings concerned the plaintiffs’ proprietary claim to about US$2.5 million in a bank account. On 21 December 2001 the plaintiffs obtained a mareva injunction over the monies pending trial. This was varied on 17 May 2004 when Recorder Wong allowed the release of specific sums to the first defendant for legal expenses. This included the estimated fee of $125,000 for senior junior counsel for the first day of the trial of the action estimated to last for 10 days and $405,000 being the estimated fees for counsel for the remaining 9 days of the trial.

3. The trial commenced on 28 November 2005. On the fifth day, namely, 2 December 2005, the first defendant discharged his solicitors Messrs Paul Kwong & Co. and his counsel Mr Jimmy Kwong. His application to the court for a substantial adjournment and a sum of $1 million to be released to him to retain new lawyers was refused. The case was adjourned to Monday, 5 December. New counsel being Mr Louie Mui instructed by Messrs Eddie Lee & Company appeared to resume the trial which continued until 15 December 2005 when it was adjourned due to the state of the court’s diary. It was at that stage that an application was made by the first defendant for a variation of the injunction by allowing the release of $600,000 to the first defendant being the estimated legal costs (comprising counsel’s refreshers and solicitors’ costs) for the period from 12 to 16 December 2005 and 9 to 13 January 2006, a total of eight trial days and a sum of $23,800 on account of the first defendant’s living expenses. The relief sought was thus in part in respect of costs already incurred.

4. The affirmation in support of the application did not address, among other things, the arrangement the first defendant had entered into with his new legal team. It should be noted that despite the change of solicitors, the handling clerk/legal executive from the beginning of the proceedings up to the end of the trial had always been the same individual. At the hearing of the application, a letter from the former solicitors was produced which showed that former counsel had been paid in accordance with the Vine formula and that counsel’s fees had already been paid in full for the 10-day trial. Pausing there, I find it remarkable that the first defendant’s former solicitors should have seen fit to enter into a fee arrangement with the first defendant’s former counsel on that basis given the circumstances for the funding of counsel’s fees.

5. The first defendant also produced a written agreement between him and Eddie Lee & Company:

“

15/12/2005

Re: HCA 5474/2001

I, LIU BO, am the 1st Defendant of the above action. The former lawyer representing me has been dismissed by me because of my lack of communication with him.

I now have an unspecified amount of legal costs held by Messrs. Paul Kwong & Co., but this is not enough to deal with the newly retained lawyer to represent me to handle this case. I now first deposit ten thousand Hong Kong dollars with the newly retained law firm and shall instruct my former law firm to refund the unused money. I am willing to pay Messrs. Eddie Lee & Company twenty thousand Hong...

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10 cases
  • Wharf Ltd And Others v Lau Yuen How And Others
    • Hong Kong
    • High Court (Hong Kong)
    • 21 Enero 2010
    ...Ostrich Farming Corporation Ltd v Ketchell [1997] EWCA Civ 2953 (10 December 1997), per Roch LJ at page 10[3]; Liu Xian Feng v Liu Bo [2006] 4 HKLRD 33 (CA) at paras 10 & 11 (37B-H) per Le Pichon JA; Michael Chen Kang Huang v Peter Lit Ma (unrep., HCSD 9/2007, 27 August 2007, Sakhrani J) at......
  • Securities And Futures Commission v Li Han Chun And Another
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 30 Julio 2019
    ...of defending himself against legal proceedings’. See: Ostrich Farming CorpLtd v Ketchell, per Roch LJ at p.10; Liu Xian Feng v Liu Bo [2006] 4 HKLRD 33, 37B–H paras.‌10, 11, per Le Pichon JA; Lit Mav Chen Kang Huang (unrep., HCSD 9/2007, HCA 218/2005, [2007] HKEC 1605), 14. In the case of a......
  • Rhonda Jeanine Pohn v Mac Richard Pohn And Others
    • Hong Kong
    • High Court (Hong Kong)
    • 20 Mayo 2015
    ...respect of variation of proprietary injunctions, see MSR Capital Ltd v KTH Recovery Fund [2005] 1 HKC 371; Liu Xian Feng Sam v Liu Bo [2006] 4 HKLRD 33; Wharf Ltd v Lau Yuen How [2010] 1 HKLRD 10. There is no basis for suggesting that the judge’s exercise of discretion was wrong in principl......
  • Hong Kong Life Insurance Ltd v Fung Siu Cheung Michael And Others
    • Hong Kong
    • High Court (Hong Kong)
    • 21 Febrero 2014
    ...the first situation, it has been held in Ostrich Farming Corp Ltd v Ketchell [1997] EWCA Civ 2953, applied in Liu Xian Feng v Liu Bo [2006] 4 HKLRD 33 and followed in Wharf Ltd v Lau Yuen How [2010] 1 HKLRD 783, HCA 1535B/2008, 21/1/10 that where the injunction involves a proprietary claim ......
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