Anling Ltd and Others v. Hultucktong Enterprises Ltd and Others
Read the full judgment text of LDCS 1000/2015 on BabelCite. This LDCS judgment was delivered on 10 May 2017.
1. Before me is an application by the applicants by way of a summons filed on 20 April 2017 (“the Summons”) for further directions to bring the proceedings to trial in light of my order made on 7 April 2017 for the originally scheduled trial dates be vacated and the hearing date be refixed in consultation with counsel’s diary (“7 April Order”).
Cites 2 cases
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LDCS 1000/2015 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION LAND COMPULSORY SALE MAIN APPLICATION NO 1000 OF 2015 ___________________
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_________________________________ REASONS FOR DECISION _________________________________ 1.Before me is an application by the applicants by way of a summons filed on 20 April 2017 (“the Summons”) for further directions to bring the proceedings to trial in light of my order made on 7 April 2017 for the originally scheduled trial dates be vacated and the hearing date be refixed in consultation with counsel’s diary (“7 April Order”). 2.Upon hearing from all parties present, it is ordered that the trial of this case should be fixed in the earliest available date in the court diary without any accommodation of counsel’s diary with detailed reason for decision to be handed down in due course. This is the reason for the decision. Background 3.On 22 March 2017, HHJ K W Wong made the order setting this case down for trial commencing on 9 October 2017 with 8 days reserved and with consequential directions for pre-trial review and various time line for the filing of documents in contemplation of the trial (“22 March Order”). At that juncture, R2, R3, R24 and R25 were represented by their respective solicitors and had indicated to the court that they have not yet retained counsel but would find and retain counsel who would be available to fit the trial dates originally fixed. 4.Due to a change of personnel and unforeseen circumstances, the 7 April Order was made directing parties to approach the Listing Officer on or before 21 April 2017 for a new trial date to be fixed. On 11 April 2017, it was also ordered that a direction hearing should also be fixed for the consequential variation of the time for compliance with the other directions in the 22 March Order. 5.Parties attended the office of the Listing Officer on 19 April 2017 but the earliest date for trial that suits all counsel falls in March 2018 since counsel for R2 is only available from February 2018 but counsel for R24/25 is not available in February 2018. As for the 1-hour direction hearing, counsel for R24/25 would only be available in July 2017. However, the earliest available date in the court diaries for a trial of 8 days is November 2017. 6.Since there is no agreement amongst the parties as to the refixed hearing dates, the applicants take out the Summons. Applicants’ Argument 7.Mr Mok for the applicants submitted that it is manifestly unreasonable and unfair to the Tribunal, the applicants and the other respondents to allow the availability of counsel only recently engaged by one or more respondents to frustrate or otherwise further substantially delay the trial any longer since it has been more than 2 years since the commencement of the proceedings in January 2015. 8.Relying on the case of DBS Bank (Hong Kong) Limited v Sit Pan Jit (unreported, HCA 382/2009, 26 April 2013), it is submitted that an order that the hearing date to be fixed in consultation with counsel’s diaries is not absolute and the court should only give effect to the parties’ wishes to the availability of counsel as far as may be convenient to the court diaries, which shall have priority. Since the court diaries can accommodate a date in November 2017 and solicitor for the respective respondents had confirmed that they would instruct counsel who can fit the originally scheduled trial date, there is no justification to further delay the trial to March 2018 simply to accommodate the diary of counsel instructed by R2 and R24/25. 9.Even if counsel for R2 and R24/25 are not available before March 2018, there should not be practical difficulties for them to engage other counsel for the trial since their counsel were only instructed lately and the need to ensure continuity of representation of counsel would have a relatively low degree of prejudice (if any) to the respondents. Even if the existing counsel retains by the respondents had given any opinion and/or advice in relation to this application, the new counsel would in any event have the benefit of such previous work and there could not be duplication of effort or expense. 10.The applicants asked for a trial date be finalized at this hearing without any reference to any counsel’s diary and for consequential directions to be made as well for the preparation of the trial. R2’s Reply 11.Ms Cheng for R2 submitted that the 7 April Order had specifically provided that fixing of a date should be in consultation with counsel’s diary and see no urgency of this case for a date to be fixed without accommodation to counsel’s diary. Given there is only a 3 months’ difference from November 2017 to March 2018, there shouldn’t be any prejudice to the applicants nor any serious delay. 12.It is also Ms Cheng’s submission that the consideration in the case of DBS Bank is different with our case since a trial date had already been fixed in that case with the plaintiff seeking to set it aside. R3’s Reply 13.Ms Lin for R3 indicated that R3 takes a neutral stance in this application since R3 had not retained any counsel yet. R4 & R5’s Reply 14.Mr Wan the representative for R4 and R5 also indicated that he had no preference as far as the trial date is concerned. R24 & R25’s Reply 15.Mr Lam for R24 and R25 submitted that this is an unfair application by the applicants to suggest fixing a date ignoring availability of counsel for the respondents. A delay from November 2017 to March 2018 is not an exaggerated period of time in light of the fact that there are 13 respondents still remained in this case and 3 law firms acting for some of the respondents. 16.As for the case of DBS Bank, Mr Lam had no argument with the findings in the case but just ask this court to look at all the circumstances of this case. Discussion 17.I agree with the applicants that the case of DBS Bank and Paragraph 5(3) of Practice Direction 7.1 (“PD 7.1”) are highly relevant in my consideration of the Summons before me. 18.PD 7.1 reads:
19.In the case of DBS Bank, the plaintiff asked for a re-schedule of the trial dates already fixed by the Clerk of Court without accommodation to counsel’s diary but just give priority to the court diaries in face of disagreement between the parties. Deputy High Court Judge Ng found that even if there is an order for consulting counsel’s diaries, there is nothing wrong to fix the trial dates in face of the disagreement and in giving priority to the court diaries on the consideration of public interest:
20.Applying PD 7.1 and the rationale in DBS Bank, even though the 7 April Order had directed that the trial date for the present case should be fixed in consultation with counsel’s diary, adopting Mr Mok’s description, this is not absolute and this court should consider the public interest that trials should be heard as soon as possible once it is ready. 21.At the hearing before the 22 March Order was being made, R2, R3 and R24/25 were all represented and their respective solicitors had indicated and confirmed that this case was ready for trial and they would retain counsel (if so instructed) who would be available to accommodate the trial dates fixed then. So there is no argument that this case was ready for trial as early as in March 2017. 22.When the parties were before the Listing Officer on 19 April 2017, the earliest possible date in the court diary would be November 2017 whilst the trial date would be March 2018 if counsel’s diary were accommodated. The respondents’ argued that there is only a 4 months’ difference from November 2017 to March 2018 which is insignificant. Such a contention is in direct contradiction to the public interest consideration enunciated in the case of DBS Bank. 23.In any event, 4 months’ difference is also the scenario in DBS Bank and DHCJ Ng did not find this to be a relevant factor in the public interest consideration. Given the fact that the court diaries can accommodate an earlier date, fixing the trial to a later date, no matter how insignificant the difference, would make the right to have the trial to be heard as soon as possible illusory. 24.And this is a compulsory sale case where the applicants had acquired more than 80% of the undivided shares in the lots of land involved. The financial investment by the applicants and the financial costs pending the trial of this case is substantial. Another 4 months’ delay can cause substantial prejudice to the applicants. 25.R2 and R24/25 had indicated at this hearing that they had already engaged counsel for the trial and the trial date should be fixed accommodating their counsel’s availability. Since both R2’s and R24/25’s counsel were being instructed after the original trial date had been fixed, their involvement in this case must be minimal. Even if they had already been deeply involved, quoting DHCJ Ng in DBS Bank, “the new team will have the benefit of the previous work done by the existing team of counsel engaged by the plaintiff” (at §29) and the work done by the counsel already instructed will not be wasted. Neither had the respondents raised the issue that there will be difficulties in engaging other counsel to take up this case. I see no disadvantage is likely to be caused to the respondents. 26.Having considered all the above, I have made the order at §2 above at the end of the hearing.
Mr Y C Mok instructed by Mayer Brown JSM, for the 1st to 7th applicants The 1st, 10th, 11th, 19th, 28th, 29th and 33rd respondents were not represented and did not appear Ms Ivy Cheng of Li, Wong, Lam & W.I. Cheung, for the 2nd respondent Ms Beatrice Lin of Anthony Chiang & Partners, for the 3rd respondent The representative of the 4th and 5th Respondents appeared in person Mr Lawrence Lam of Vincent T.K. Cheung, Yap & Co., for the 24th and 25th respondents | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under LDCS 1000/2015