Compania Sud Americana De Vapores S.A. v. Hin Pro International Logistics Ltd

HCMP 1449/2014

MISCELLANEOUS PROCEEDINGS NO1449 OF 2014

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D E C I S I O N
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1.The defendant applied to strike out the originating summons of the plaintiff on the grounds that it was an abuse of the court process and otherwise unarguable in the light of judgment dated 18 December 2014 and 11 March 2015 in CACV 243/2014.

2.The defendant indicated through its counsel that the defendant would not rely on affidavit evidence except for the two judgments referred to. Today’s summons is taken out by the plaintiff for leave to file and serve a further round of affidavit in reply to the affidavit of Ho Hoi-fai filed on behalf of the defendant.

3.It is said that the defendant is changing its stance in seeking to adduce new evidence when its original stance was that no evidence will be filed.  Today through counsel Mr Chu, the defendant has sought to withdraw this affirmation of Mr Ho.

The Plaintiff seeks costs

4.The defendant’s solicitors in correspondence did not take the correct stance and hence the plaintiff had to take out the present summons. The defendant’s solicitors were not aware that the affidavit of Mr Ho in fact sought through paragraph 3 to rely on various affirmations including affirmations that have not been identified. 

5.As a matter of principle, the plaintiff should be entitled to their costs.  However, the plaintiff produced a bill of $196,000 which, in this court’s view, was totally ridiculous. 

6.The affidavit evidence filed in support of today’s summons really made a mountain out of a molehill.  The 6^th affidavit of Quek, filed on behalf of the plaintiff, spent paragraphs repeating background information that had been set out in various court judgments.  There was nothing of substance except to say that the defendant was going to purportedly change their stance and that there was no evidence in support of the abuse of process ground.  What probably was new was a reference to an English Court of Appeal judgment and the plaintiff reserved the right to adduce further evidence.

7.The defendant’s affidavit of Mr Ho, as I said, suggested relying on various affidavit evidence.  The rest is all legal submission.  Paragraphs 6 to 8 of that affirmation purported to put in new evidence.  The affidavit evidence of Mr Green in support of the present summons once again set out the background of the case which can be found in various court judgments.  The purpose of this affidavit is simply to point out that the defendant purports to change their stance in seeking to rely on new evidence.  The 8^th affirmation of Mr Shea of the defendant in reply recited the Court of Appeal’s judgment, made arguments and some comments on the Affidavit of Quek.

8.I set out in some detail the information of these affidavit evidence just to show the ridiculous manner in which litigation is conducted on both sides.  The plaintiff then seeks this huge cost of $196,000.  In my view, the present application is worth only a 3-minute hearing, although it has to be before a judge. 

9.To reflect the court’s disapproval, I am not going to award the level of costs anything near to the level of costs now sought by the plaintiff.  There is no reason for either side to prepare such lengthy affirmation for this application.  There was also no reason for the plaintiff to prepare that draft affidavit evidence in anticipation of an order under the summons.

10.For today’s purpose, I order the defendant to pay the plaintiff’s costs in the sum of $4,000.  The affidavit of Mr Ho is expunged from the court file.

Ms Frances Lok, instructed by Stephenson Harwood, for the plaintiff

Mr George Chu, instructed by Damien Shea & Co, for the defendant