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Wong & Fok (A Firm) v Ronstar (Asia) Ltd

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date23 August 2010
Subject MatterCivil Action
Judgement NumberHCA1476/2009
CourtHigh Court (Hong Kong)
HCA001476/2009 WONG & FOK (a firm) v. RONSTAR (ASIA) LTD

HCA 1476/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1476 OF 2009

____________

BETWEEN

WONG & FOK (a firm) Plaintiff
and
RONSTAR (ASIA) LIMITED Defendant

____________

Before: Mr Recorder Ambrose Ho, SC in Court

Date of Hearing: 12 July 2010

Dates of Further Submissions: 19 and 25 July 2010

Date of Judgment: 23 August 2010

_______________

J U D G M E N T

_______________

1. The Plaintiff is a firm of solicitors. The firm is suing the Defendant, its former client, for outstanding legal fees. Its claim relates to 3 fee notes, being A/90548/07 dated 14 November 2007, A/90557/07 and A/90568/07 both dated 23 November 2007.

2. The sum total of the Plaintiff’s claim is $37,640, plus interest. The claim was first lodged in the Small Claims Tribunal on 7 December 2007. It was later allowed to be discontinued with an order against the Plaintiff to pay $500 costs to the Defendant.

3. Subsequently on 16 June 2008, the Plaintiff issued proceedings in the Small Claims Tribunal again for the same claim. By order of the Adjudicator, the claim was transferred to the Court of First Instance for trial.

4. At the trial before this Court, the Plaintiff was represented by counsel, Mr Tsang. The Defendant was not legally represented but its director, Mr Poon, had obtained leave to represent the company. Some of the matters raised in the Defence were somewhat obscure. After hearing representations from the parties, it appeared to me that only 2 issues were appropriate for determination at this trial, namely:

(i) What was the agreement as to the rate of fees to be charged by Mr Samuel Wong, a partner of the Plaintiff, and by other solicitors of the firm;

(ii) Whether the Plaintiff was barred from pursuing the present claim when they had already “terminated” the first set of proceedings before the Small Claims Tribunal.

5. I should mention that apart from these 2 issues, Mr Poon also sought to advance an argument that the Defendant was not under any obligation to pay the “interim bills” on the ground that such bills were not “statute bills”. According to Mr Poon, 6 conditions – the “6 hurdles” as he put it – were required to be fulfilled before the bills became enforceable. I had difficulty understanding the argument although I had given Mr Poon considerable allowance in the framing of the issue. Notwithstanding Mr Poon’s submission that this point was encompassed under paragraph 9 of the Defence (which merely pleaded that the Defendant was “not obliged to settle the said un-established debt .... ”), I did not consider the point to have been properly raised in the pleading and accordingly I had disallowed the issue for the purpose of this trial.

6. There was yet another point concerning the Defendant’s challenge to “the time and value” of the Plaintiff’s work under the respective fee notes (paragraph 10 of the Defence). It appeared to me – and both parties agreed – that such challenge should best be referred to a Taxing Master after I have given my decision on the 2 issues identified above.

7. I will proceed to deal with the 2 issues.

The Disputed Rate

8. It is common ground that the Plaintiff’s retainer was not set out in a written agreement. Mr Samuel Wong of the Plaintiff on the one hand and Mr Poon on the other gave different account of what the agreed rate of charge was.

9. Mr Wong said that he had informed Mr Poon at their first meeting (on 28 September 2007) that the Plaintiff would charge the Defendant on an hourly basis according to the High Court taxation rate. He informed Mr Poon that his hourly rate would be $4,000 and that the rates for his associates would range between $2,500 and $3,000 an hour depending on their seniority.

10. Mr Poon’s recollection of the discussion was very different. He said that Mr Wong had told him that the charge of the Plaintiff firm would be $4,000 per day, and that was the basis on which he agreed to retain the Plaintiff to act for the Defendant.

11. I will begin by setting out the background leading to Mr Poon’s meeting with Mr Wong.

12. The Defendant is a contractor in the construction industry. At the time, the Defendant faced litigation brought by one of its material suppliers (“the High Court Action”). Mr Poon wanted legal advice in relation to the litigation. He had initially approached a solicitor, Mr Yeung, who had previously acted for the Defendant. However, on this occasion Mr Yeung was tied up with other commitment and unable to help.

13. Mr Poon called at the Plaintiff’s office as it was in the vicinity of his office. He had not previously engaged the Plaintiff firm.

14. At the Plaintiff’s office, Mr Poon was first received by a Miss Chan at the reception. Accordingly to Mr Poon (whose evidence I accept on this point), he was told by Miss Chan that the charges for the first hour of a preliminary meeting with a solicitor would be $500, and in the event of Mr Poon deciding to engage the Plaintiff for the case, the $500 would be treated as the Defendant’s costs-on-account.

15. However, I do not accept that there was any specific mention that the preliminary meeting would be a “free” consultation. An email dated 23 November 2007 from Mr Poon to Mr Wong made no mention of a complementary consultation. That email is of some significance to the first issue and I will return to it later in this Judgment.

16. Instead, I believe it far more likely (and I find) that upon Miss Chan’s mentioning of treating the $500 as costs-on-account, Mr Poon was given the impression (which he believed) that he would not be charged for the preliminary consultation if the Defendant were to decide to engage the Plaintiff’s service – a belief which I think was justifiable in the absence of clearer indication from Miss Chan that the preliminary consultation would be subject to charge.

17. Mr Poon paid the $500 and a receipt was issued. Mr Poon was introduced to meet Mr Samuel Wong. As it appears on the relevant fee note, that meeting lasted about half an hour. Mr Poon was favourably impressed by Mr Wong’s background as Mr Wong was also qualified as a structural engineer and had experience in construction law and arbitration.

18. During the meeting, Mr Poon showed Mr Wong a copy of the writ in the High Court Action and a copy of the draft defence he had prepared. In this regard, I accept Mr Wong’s evidence that he considered the case reasonably straightforward, but at the same time, he formed the view that Mr Poon’s draft defence would require a fair amount of revision. Although he expected that the plaintiff in the High Court Action would move for summary judgment soon, Mr Wong considered himself well able to deal with such application and settle the defence. Although he did not consider it necessary to engage counsel at the initial stage, he did discuss counsel’s fees with Mr Poon as it was an action in the High Court. He told Mr Poon that counsel’s fees would range anything between $10,000 and 40,000 per day depending on seniority.

19. Mr Poon decided to engage the Plaintiff. It is not disputed that the Defendant paid a further $2,000 on account after the meeting.

20. Regarding the central issue as to the rate of fees to be charged by the Plaintiff, it is noted first and foremost that Mr Wong’s version of the event was clearly borne out by the attendance note. The note, according to Mr Wong and I accept, was prepared by him contemporaneously during his first meeting with Mr Poon. Among other things, it set out specifically the hourly rate chargeable by him as well as the range of charges by other solicitors of the firm. There is no suggestion, and in any event I consider it improbable, that Mr Wong would have inadvertently mis-communicated the rate as a daily rate when he had actually recorded it as an hourly rate in the attendance note.

21. Mr Poon made several points to challenge Mr Wong’s version of the event. First, he queried why Mr Wong did not require him (Mr Poon) to countersign the attendance note to signify his agreement to the rates of charge. On this, I accept Mr Wong’s explanation that it was not his practice to ask the client to do so and I do not see anything exceptionable about that.

22. Mr Poon next questioned why Mr Wong did not follow paragraph 4.02 of the Solicitors’ Guide to Professional Conduct to provide the Defendant promptly with a written record of the agreement on the fees. In answer, Mr Wong did not agree that the particular provision in the Professional Guide was applicable because his reading of that paragraph applied only to “agreed fees” and not “agreed rates” of the fees. It is not...

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