Cheung Chun Nui v. Bright Profit Asia Group Ltd

DCCJ 2837/2018

[2019] HKDC 82

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2837 OF 2018

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REASONS FOR DECISION

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1.These are the reasons for my decision on the plaintiff’s summons dated 30 October 2018 seeking for an extension of time to file her affirmation in reply in a summary judgment application initiated by her.

2.I refused the plaintiff’s application on the day of the hearing and said that I would give my detailed reasons in writing. Here are the reasons.  

3.First and foremost, the plaintiff clearly knew that the defendant has an arguable defence in this case as early as in July 2018, ie soon after the writ was issued and the statement of claim was filed by the plaintiff on 28 June 2018, as they had received a without prejudice letter dated 18 July 2018, stating in detail the basis of its dispute and the nature of the defence which the defendant is relying on.

4.Despite of that, the plaintiff persisted with her claim and took out a summary judgment application under Order 14 on 3 August 2018.

5.Thereafter, the defendant wrote to the plaintiff in an “open letter” dated 16 October 2018 to reiterate its defence and invite the plaintiff to make further investigation and to withdraw the summons.

6.Nonetheless, on 17 August 2018, the plaintiff replied to the defendant and stated the plaintiff intended to continue with her summary judgment application.

7.The original date for filing her affirmation in reply as specified under the Order of His Honour Judge Kent Yee dated 24 August 2018 (which was entered by consent) had not been complied with and no affirmation was filed by the plaintiff by the deadline on 5 October 2018.

8.The plaintiff then requested for an extension of time. The defendant acted reasonably by agreeing to an extension of 21 days, ie up to 26 October 2018, for the plaintiff to file her affirmation in reply.

9.On 23 October 2018, ie just 3 weeks before the hearing, the plaintiff requested for a further extension of time for 10 weeks. This time it was rightly refused by the defendant.

10.On 30 October 2018, 4 days after the extended deadline and less than 2 weeks before the hearing, the plaintiff took out a summons to ask for extension of time to file the affirmation in reply and to adjourn the hearing, which was returnable for arguments on 13 November 2018.

Findings of the Court

11.In my judgment, the plaintiff has completely failed to provide any good or valid reasons as to why she could not file the affirmation in reply in time in this case.

12.As the plaintiff’s counsel has agreed in court, the hearing date was a “milestone date”. Unless for exceptional circumstances justifying the variation, the court will not usually be prepared to move such date: (See Order 25, rule 1B of the Rules of the District Court (“RDC”)).

13.In my view, the plaintiff has failed to show to the court any exceptional circumstances in this case.

14.Having read the pleadings and the relevant documents in the case, it is quite clear to me that the Order 14 application has been misconceived and taken out prematurely.  What the plaintiff is now trying to do is to plug the holes in her own case after realising the defendant has a perfectly arguable defence.

15.In my view, in suggesting that a summary judgment application should be adjourned so as to allow her own expert to go into the defendant’s premises to carry out an inspection and at the same time demand that the defendant should appoint its own expert to inspect the premises demonstrates either the plaintiff is not familiar with the court’s usual procedures in water leakage cases or, worse still, a complete disregard of them. Plainly, it is not for the plaintiff to give directions to herself or other parties as to how and when expert evidence should be adduced. This is the job of the court. Further, it is not appropriate in an Order 14 application to order inspection of the premises by experts, especially after the defendant has filed his evidence.

16.To conclude, I find that there was absolutely no basis, be it factual or legal, for the plaintiff to ask for an extension of time to file the affirmation in reply and to adjourn the hearing.  I do not see why a milestone date like the substantive hearing for the Order 14 application should be moved on the flimsy grounds as stated in the plaintiff solicitor’s affirmation.

17.For the aforesaid reasons, I dismissed the plaintiff’s summons taken out under Order 3, rule 5 and Order 32, rule 1 of the RDC dated 30 October 2018.

18.I also ordered that costs be awarded to the defendant on an indemnity basis, such costs to be summarily assessed by me and to be paid forthwith.

Disposal of the Order 14 Summons

19.After the above ruling, the plaintiff’s counsel requested for a short adjournment at the hearing. After the plaintiff’s legal team returned to the court, the plaintiff’s counsel applied to withdraw the Order 14 Summons.

20.Given my earlier ruling in dealing with the time extension summons, I reluctantly allowed the plaintiff to withdraw the Order 14 summons.

21.In any event, as I have mentioned to the parties at the hearing, I would have dismissed the Order 14 application on the rather flimsy grounds which the plaintiff was trying to rely as stated in her original supporting affirmation.

22.In my judgment, the O14 application has clearly been misconceived in the first place and should have been withdrawn immediately after the defendant revealed by without prejudice letter in early August 2018 that they have a perfectly respectable and arguable defence in this case.

23.Mr Hu, on behalf of the plaintiff, has rightly conceded costs in favour of the defendant for the Order 14 application.

24.Mr Lam, on behalf of the defendant, asked costs to be paid on an indemnity basis.

25.I agree this should be the case, and, subjected to what Mr Hu had to say, I ordered costs of the summary judgment application, including the hearing on 13 November 2018, to be paid by the plaintiff on an indemnity basis, including the costs of instructing counsel, such costs to be paid forthwith.

Summary Assessment on costs

26.By withdrawing the summons in the last minute, even before they had begun to argue it, it shows that the plaintiff was well aware that she had no basis to either initiate the application, or after initiating it, that it has sufficient grounds to proceed with the application from a very early stage of these proceedings.

27.Further, the summary judgment application has in my view been carried out in an oppressive manner and constituted to an affront to the court: See Order 62/App/12 and 13.

28.I therefore rule that the costs of the defendant should be paid by the plaintiff on an indemnity basis.

29.Having studied the statement of costs prepared by the defendant, I summarily assessed the defendant’s costs at HK$116,387 and ordered such costs to be paid by the plaintiff to the defendant forthwith. 

Mr Derek Hu, instructed by Liu, Chan & Lam, for the plaintiff

Mr Timothy Lam, instructed by Chung & Kwan, for the defendant