Tin Wan Tung v. Wong See Yin and Others

HCA 167/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 167 OF 2011

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HCA 1801/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1801 OF 2010

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(Consolidated by Order of Master S Kwang dated the 4th day of December 2013)

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HCA 376/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 376 OF 2013

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HCA 377/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 377 OF 2013

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(Consolidated by Order of Master S Kwang dated the 4th day of December 2013)

Before:  Hon Wilson Chan J in Chambers

Date of Hearing:  9 February 2017

Date of Decision:  9 February 2017

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D E C I S I O N

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1.In these proceedings, Damien Shea & Co Solicitors (“DSC”) have issued a Summons dated 29 December 2016, applying for a stay of all proceedings in HCA 376/2013 and HCA 377/2013 (“the Consolidated Solicitors Proceedings”), pending determination of the outcome of the trial in HCA 167/2011 and HCA 1801/2010 (“the Consolidated Main Proceedings”).

2.DSC submit that depending on the court’s finding made in the trial in the Consolidated Main Proceedings, it may render the trial in the Consolidated Solicitors Proceedings unnecessary.

(1) If the court in the Consolidated Main Proceedings finds in favour of the Wong parties that there was no misrepresentation and that the transfer of the subject properties was pursuant to a genuine commercial arrangement, then the claim against the solicitors will fail as well.

(2) If the court in the Consolidated Main Proceedings finds in favour of the plaintiffs and they are able to fully recover their loss from the Wong parties, they will have no further loss to claim against DSC.

3.Further, the determination of liability and quantum in the Consolidated Main Proceedings will assist the parties in the Consolidated Solicitors Proceedings to be better informed as to the merits of the claim in the Consolidated Solicitors Proceedings and the likely quantum (if any).  This will facilitate and encourage settlement negotiations.

4.DSC’s stay application is opposed by the plaintiffs as well as the defendants in the Consolidated Main Proceedings, essentially on two grounds:

(1) The court has already given the relevant trial directions after hearing the parties at the 3^rd Case Management Conference on 1 September 2016, and that there has not been any change of circumstances that would justify changing the directions already ordered by the court.

(2) Considerations of common witnesses and overlapping issues warrants the directions already given by this court at the 3^rd Case Management Conference on 1 September 2016.

5.Having considered the parties’ submissions, I am of the view that the Consolidated Solicitors Proceedings should not be stayed.

6.In coming to this view, I note that:

(1) Relevant directions for trial of the Consolidated Main Proceedings and the Consolidated Solicitors Proceedings have already been made by this court on 1 September 2016, after hearing and considering all the views and submissions made on behalf of the parties.

(2) There has not been any appeal against the order made by this court on 1 September 2016.

(3) There is no suggestion by DSC that there has been significant change of any circumstances since 1 September 2016 that merits a reconsideration of the trial directions given by this court on 1 September 2016.

7.Further, I agree with the plaintiffs that if the Consolidated Solicitors Proceedings are stayed, there is a real risk that the common witnesses in the Consolidated Main Proceedings and the Consolidated Solicitors Proceedings will have to be examined twice on the same factual issues.  It will create a highly undesirable situation with a real and inherent risk of inconsistent findings of fact and the aggravated result of duplication of costs and waste of judicial time involved.

8.For the reasons set out above, I order that DSC’s stay application should be dismissed.

Mr Jeremy Cheung, instructed by Joseph Li & Co, for the plaintiff (HCA 1801/2010 & HCA 377/2013)

Mr Michael Liu, instructed by Joseph Li & Co, for the plaintiff (HCA 167/2011 & HCA 376/2013)

The 1^st defendant, in person (HCA 167/2011 and HCA 1801/2010)

The 2^nd and 3^rd defendants were represented by the 1^st defendant (HCA 167/2011 and HCA 1801/2010)

Mr Victor Dawes, SC, leading Mr Val Chow, instructed by Smyth & Co, for the defendant(HCA 376 /2013 & HCA 377/2013)