Mirador Mansion Owners & Tenants Association Ltd and Another v. Alice & Joyce Leung

CACV000035/1969

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 35 OF 1969

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Coram: Blair-Kerr, Mills-Owens & Huggins, JJ.

Date of Judgment: 4 February 1970

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JUDGMENT

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Huggins, J.:

1. This is an appeal against an Order of the judge in Chambers dismissing an application by the 95th and 143rd defendants that the action against them be struck out on the ground that the joinder of the alleged cause of action against these defendants embarrasses and delays the trial of the action. The Order was made on the 25th July, 1969. Notice of Motion on appeal was given on the 4th September, 1969. I think it is unfortunate that an interlocutory appeal of this kind should not come on for hearing until a whole term following that upon which it was filed, particularly in the present case where the appeal comes on exactly one month before the date set down for the trial of the action.

2. We do not have any reasons from the learned judge for his decision and this also is unfortunate because there seems to be some doubt in the minds of counsel who have appeared before us what were the reasons. While in England it is customary for the Masters to give summary decisions the position in Hong Kong is somewhat different. In England there is an appeal first to the judge in Chambers and thereafter to the Court of Appeal. In Hong Kong we have only a single tier appeal system in interlocutory matters and I think it is very desirable that when a case comes before this court the court should have the benefit of being told the basis of the decision appealed against. If counsel for the appellants is right the ground for the dismissal of this application was simply that it was made far too late. Counsel for the respondents says that the delay was merely one of the considerations taken into account by the learned judge in deciding the merits of the application. Clearly if counsel for the appellants' impression is right the Order cannot be supported on the ground stated. Although it is true that the Supreme Court Practice states:-

that does not mean that there is any time limit upon the making of such an application. Indeed such an application may properly be made at the trial and not necessarily at the beginning of the trial: see Thomas and Moore 1918 1 K.B. 555. Nevertheless delay may, in the particular circumstances of a case, indicate a lack of bona fides in the making of the application and it is this aspect which needs to be carefully considered here.

3. First, however, it is necessary to ask whether there has been any unreasonable delay in the making of the application. We are told that both these appellants had been served by the end of November 1967 with the original writ. The 95th defendant entered an appearance on the 28th June 1967 but the 143rd defendants did not enter an appearance until the 12th March, 1969. In the mean time both had been served with a separate Statement of Claim, in addition to that endorsed on the writ, on the 18th January 1968. On the 5th March 1968 other defendants took out a summons to strike out the action, a summons which was not disposed of until the end of 1968. On 14th May 1968 the Statement of Claim was amended without leave. Following the proceedings to strike out there was an application for leave further to amend the Statement of Claim and on the 5th March 1969 the 95th defendant was served with a re-amended writ and Statement of Claim, the 143rd defendants being served on the 17th March 1969. It is argued on behalf of the respondents that the substance of the re-amended Statement of Claim did not differ materially from that which was previously filed and for my part I am inclined to agree. Nevertheless it is said on behalf of the appellants that it was reasonable for them not to make the present application at a time when there was a possibility that the action would be struck out on the application of the other defendants. With that also I agree but it seems to me that once that application had been disposed of it was incumbent upon the appellants to proceed with reasonable promptitude. It is true that at the time they did apply the action had not been set down for trial but I think a delay of nearly three months after service of the re-amended Statement of Claim was not justified.

4. It has been suggested to us that if the claims against these appellants were severed they could conveniently be tried in the District Court. There are some 94 other defendants in a position very similar to that of these appellants and I doubt whether it would be convenient for such claims to be dealt with separately in the District Court. In any event no application was made when this summons was taken out for the claims to be transferred to the District Court and I think this suggestion comes too late in any event.

5. The crux of the matter, as it seems to me, is that the appellants not only delayed for nearly 3 months in making the present application but they have not filed a defence or given any indication whatsoever of the nature of the defence which they seek to put up. Again counsel for the appellants seeks to excuse this on the ground that the appellants were reasonably avoiding expense which might not be necessary. I find it difficult to see how we can fairly say that the trial of the action will be embarrassed until we know what issues will have to be fought at the trial. I would not say that there is a general rule that an application of this kind should be left for the decision of the trial judge, because it may often be convenient to separate the issues before the stage of trial is reached. Nevertheless in my view it is essential that whoever is called upon to decide such an application ought to be given as clear a picture as possible of what is involved and especially of the various issues of law and fact which will have to be decided. That has not been done here and I am not persuaded that the conclusion of the learned judge in Chambers was wrong. If he did exercise his discretion upon a weighing of the merits I would not interfere with that exercise of his discretion: if he did not exercise his discretion then in my view we ought to exercise our discretion by dismissing the application.

6. I would only add that upon the information before us it is by no means clear that if the claims against these appellants were severed there would not in the end be some duplication of evidence.

7. I would dismiss this appeal with costs but that would be without prejudice to any application which might be made to the judge at the trial.

4th February, 1970.

Representation:

Bornacchi, Q.C. & M. Asome (Brutton & Stowart) for Respondents

Judgment pronounce by Huggins, JJ in Court.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO.35 OF 1969

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Coram: Mills-Owens, J.

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JUDGMENT

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8. I agree. It must, obviously, be open to doubt whether the defendant appellants intend to seek to defend the action; even at this late stage, with the trial fixed for only a few weeks ahead, they have made no move towards filing defences. In these circumstances, as it appears to me, a heavy onus lies on the appellants to show that their application is not made with a view to delaying the prosecution of the case as against them. The circumstance that no defences have been filed by the appellants also leaves this Court in the unfortunate position of being unaware how far many of the issues raised are common to the appellants and other defendants. No doubt it is clearly the case that certain issues affect only the first few defendants, in particular the issues arising out of the allegations of fraud and of failure to account for moneys collected for management expenses and outgoings, and it may well be that the trial judge will decide to deal with those issues separately. But other issues raised in the Statement of Claim may well be common to the other defendants, including the appellants, such as questions of construction of the conditions of the Regrant, and of the Deed of Mutual Covenant, and of the extent, if at all, to which those defendants are bound by the provisions of those documents. It may well be that issues such as those ought to be tried together as regard those defendants, for convenience. If the appellants do not choose even at this late stage to define their position precisely, they are not in my view entitled to any indulgence but rather are to be treated as failing to show that there is no lack of bona fides in their application.

Representation:

Bernacchi, Q.C., & Asome (Brutton & Stewart) for Respondents.