All Cheer Industrial Ltd v. City Target Ltd and Another

DCCJ5308/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5308 OF 2015

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D E C I S I O N

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1.  1^ST DEFENDANT’S SUMMONS DATED 14 APRIL 2016 UNDER ORDER12 RULE 8A[1]

1.This summons by the 1^st defendant was issued pursuant to Order 12 rule 8A to seek an order for the dismissal of the action against it on the ground that the plaintiff, upon the written request by the 1^st defendant for the service of the writ on it, has failed to serve the writ on the 1^st defendant. 

2.According to the affirmations in support of this application, in the letter to the plaintiff by the solicitors for the 1^st defendant, the 1^st defendant requested the plaintiff to serve the writ within 14 days, failing which the 1^st defendant would seek an order to dismiss the action. After having read the affidavit of Fu Siu Ming and the fourth affirmation of Ho Kwok Chau both of which were filed on 1 April on behalf of the 1^st defendant, I accept that the Order 12 rule 8A notice has been properly served on the plaintiff. According to the notice, the plaintiff was requested to serve the writ within 14 days, the last day of which period was 10 March 2016.

3.Up to today, the writ has not been served on the 1^st defendant.  Accordingly, pursuant to Order 12 rule 8A, I order the dismissal of this action and grant order in terms of paragraph 1 of the summons.

4.I further order that the costs of this summons be paid by the plaintiff. 

5.I have considered the costs statement submitted by counsel, the 1^st defendant’s costs being contained in items A, B, C, D and F of the statement. Item B1, photocopying charges, will be allowed in full.  Items B2 and C1 will likewise be allowed in full.  As for Item C2, I would allow SA ½ hour only, thus $1,610 should be reduced to $1,150.  As for C3, these costs will be disallowed since counsel certificate has not been granted notwithstanding that it was represented by counsel at the hearing. As far as D1 is concerned, the time for LC, I allow 2 hours instead of the 2.2 hours as claimed. Thus the amount for Item D1 should be reduced to $1,320.  Insofar as D2 is concerned, I allow 1 hour, thus assessed at $2,300. D3 and D4 are allowed in full.  So far as F is concerned, since the costs are party-and-party costs, the costs for that item should be disallowed.

6.The costs are summarily assessed at $10,050.

1^ST DEFENDANT’S SUMMONS DATED 10 DECEMBER 2015: ADJOURNED PARA 1[2]

7.At the hearing on 3 February 2016, this court acceded to the 1^st defendant’s application in this summons by granting an order in terms of paragraph 2, ordering the vacation of a pending registration of the lis pendens of the writ of summons registered against the subject property which I refer to in my judgment that I gave on that day.

8.The reason for which the vacation of the lis pendens was ordered was on the basis that this court, on the supporting affidavit evidence, was satisfied that the plaintiff had not prosecuted this action bona fide, and that the plaintiff had no intention to prosecute this action.

9.The summons however was not yet disposed of at the hearing on 3 February. This was because this court adjourned para 1 of the summons that seeks an order for striking out under Order 18 rule 19 to enable counsel for the 1^st defendant to make further submissions to answer a question that had been raised regarding the jurisdictional basis for the 1^st defendant to invoke the strike out application before the 1^st defendant had been served with the writ.  At the hearing on 3 February, this court had remarked that elsewhere in the Rules there should be provisions that permit the 1st defendant to invoke a court’s dismissal power without resorting to Order 18 rule 19. Further, the court also raised the question of the monetary jurisdiction of the District Court as, according to the evidence, it would appear that the District Court was not the proper court to commence the action.

10.Mr Lam (counsel for the 1^st defendant) was therefore asked to make further written submissions and provide authorities as to whether this court should exercise its discretion to strike out under Order 18 rule 19. Paragraph 1 of the summons was therefore adjourned and was directed to be disposed of on paper unless the court otherwise ordered.

11.Since the adjournment of the hearing, Mr Lam has lodged his written submission in which he very helpfully referred to me a number of authorities in support of his proposition that the court has jurisdiction to order the striking out of an action even though the writ has not been served.  One of the cases that Mr Lam had referred to was the case he cited this morning, the Court of First Instance decision of Lam J (as he then was) of Wong Fuk Tim[3].

12.After Mr Lam had lodged his written submissions, counsel’s attention was then drawn to the provisions of Order 12 rule 8A that empower a party against whom a writ has been issued to require the plaintiff to serve the writ within a stipulated time. Otherwise, a dismissal application can be made. Hence, counsel was referred to these provisions, and the adjourned hearing of para 1 of the summons was restored for hearing rather than being dealt with by paper disposal.

13.The 1^st defendant consequently issued the summons under Order 12 rule 8A, to which application I had in the above acceded by dismissing the action.  By virtue of the dismissal of the action under Order 12 rule 8A, the striking-out application in paragraph 1 of this summons now became superfluous as the action earlier has been dismissed under Order 12 rule 8A.  I therefore granted leave to the 1^st defendant to withdraw paragraph 1 of the summons. It is no longer necessary for the court to grant what would be a duplicative order if the court were to strike out the writ. 

14.After the withdrawal of para 1 of the summons, the only outstanding matter that I needed to deal with is costs of the summons. Mr Lam urged this court to grant costs to the 1^st defendant for the whole summons. It was submitted that notwithstanding that the 1st defendant had withdrawn paragraph 1 of the summons, the 1^st defendant could be said to have substantially got what it had sought to apply for.  Especially being the case that the court had in the earlier hearing acceded to para 2 of the summons issued under section 19 of the Land Registration Ordinance by ordering the vacation of the lis pendens.

15.I agree with Mr Lam’s submissions that even if the 1st defendant had earlier sought to invoke Order 12 rule 8A to apply for the dismissal of the writ, the 1^st defendant would have still needed to include an application for the vacation of the lis pendens in the summons. In this respect, Mr Lam is right in submitting that the 1^st defendant could be described as having won substantially.

16.However, I am of the view that had the 1^st defendant from the outset applied for the dismissal under Order 12 rule 8A, costs would have been saved.   

17.For this reason, so far as costs are concerned, in order to do justice to the parties, I would allow the costs of this summons to the 1^st defendant except for the costs solely occasioned by paragraph 1 of the summons.   I further grant certificate for counsel for this summons.

18.The costs of the summons, including costs reserved, are assessed at $62,795.  I will now go through each item in the costs statement in turn to explain how I arrived at this amount.   

19.I allow B1, B2, C1, C2 and C3 in full. So far as D1 is concerned, these are 4 hours’ costs of trainee solicitors; I allow 3 hours. D2, 2 and ½ hours claimed by SA; I allow 2 hours.  D3, 1 and 1/2 hours claimed by SA; I allow 1 hour.  D4, the time for the hearing attended by SA; I allow 1 and 1/2 hours.  E3 is allowed in full. F1, travelling expenses, should not be allowed.  F2 is allowed in full.

20.Thus, I grant the following orders:

(1)   Leave to the 1^st defendant to withdraw paragraph 1 of the summons.

(2)   The plaintiff shall pay the 1^st defendant’s costs of the summons, gross sum assessed at $62,795.

The plaintiff was not represented and did not appear

Mr Lam Chin Ching Gary, instructed by DLA Piper Hong Kong, for the 1^st defendant