Trenus Oceanway Ltd v. Richland International Ltd and Another

CAMP 496 /2021

[2022] HKCA 198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 496 OF 2021

(ON AN INTENDED APPEAL FROM HCCW NO 352 OF 2014)

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Before:  Hon Kwan VP and Barma JA in Court

Dates of Written Submissions:  5 and 15 November 2021

Date of Judgment:  4 February 2022

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.This is the renewed application of the petitioner for leave to appeal against the decision of Harris J on 5 March 2021 (“the Decision”) in relation to the petitioner’s application for specific discovery. Leave to appeal was refused by the judge in his decision of 25 October 2021 (“the Leave Decision”). The grounds of appeal in the draft notice of appeal annexed to the present summons are the same as those considered by the judge in the Leave Decision.

2.Having considered the papers and the submissions on both sides, we exercise our discretion to determine this application on paper without an oral hearing, pursuant to Order 59 rule 2A(5)(a).

3.It is unnecessary to repeat the background, which we have set out in another judgment in CAMP 249/2021 handed down on the same date as this judgment.

4.In the Decision, the judge refused discovery in respect of §§2 to 4 in Schedule 1 to the summons for discovery and limited the discovery sought in respect of §§5 and 6 to the period from June 2003 to January 2014. This is in the nature of a case management decision in the exercise of the judge’s discretion. Unless very special circumstances are made out, the appeal court will not disturb a decision of this kind on appeal (Sunny Tadjudin v Bank of America NA, HCMP 691/2012, 29 June 2012, at §25). The relevant principles on granting leave to appeal against such a decision are set out in the Leave Decision at §2, which quoted from the decision of Lok J in K&L Gates v Navin Kumar Aggarwal & Ors [2019] HKCFI 200 at §7.

5.As stated by Lok J in §7(ii): “In specific discovery applications, the scope of order often requires a judgment call to be made, having regard to all the circumstances.” The judge formed a view as to how the Points of Claim (“POC”) and the Amended Points of Defence of the 1^st respondent (“APOD”) should be read, and, in light of his understanding of the pleadings in their totality, took the view that the discovery sought should not be ordered when it has not been properly pleaded by the petitioner in the Points of Reply that the conduct of the 1^st respondent pleaded in §§39 to 44 of the POC is relevant to the “clean hands defence” in §44.1 of APOD. The court and the opposite party should not be left to “intuit” what is relevant for the purpose of discovery in the absence of a proper plea. He therefore refused the discovery sought in §§2 to 4 in Schedule 1 and limited the discovery in §§5 and 6 to January 2014 as a cut-off date. This is a judgment call that the judge is entitled to make.

6.The arguments advanced by the petitioner are merely a repetition of the unsuccessful arguments advanced earlier, and rejected by the judge for the reasons given in the Decision and the Leave Decision, with which we agree. The petitioner has failed to make out any palpable errors which can give rise to appellate intervention.

7.The threshold requirements for granting leave to appeal are plainly not satisfied. We refuse to grant leave to appeal.

8.As this application is wholly without merit, we exercise our power under Order 59 rule 2A(8) and further order that no party may request our determination herein to be reconsidered at an oral hearing inter partes.

9.We make an order nisi that the petitioner should pay the 1^st respondent’s costs of this application. We have considered the statement of costs for summary assessment lodged belatedly by the 1^st respondent’s solicitors on 18 January 2022. The amount of reasonable costs allowed to the 1^st respondent is $100,000.

10.If there is no application to vary the costs order nisi or the gross sum assessment within 14 days of the handing down of this judgment, they will be made absolute.

Written submissions by Mr Michael Lok and Ms Jasmine Cheung, instructed by Sit, Fung, Kwong & Shum, for the Petitioner (Applicant)

Written submissions by Mr Victor Joffe, Mr Mike Lui and Ms Theresa Chow, instructed by DLA Piper Hong Kong, for the 1^st Respondent (Respondent)