Xiao Qunying v. Pap Ltd and Another

HCMP 2130/2021

[2022] HKCFI 3700

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2130 OF 2021

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BETWEEN

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Before: Hon Harris J in Chambers

Date of Hearing: 7 December 2022

Date of Decision: 7 December 2022

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D E C I S I O N

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1.I have before me an originating summons dated 16 December 2021 issued by the Plaintiff seeking disclosure of various documents by the 1^st Defendant, the company of which he is a member. The originating summons seeks 4 categories of documents. It is not in dispute that the first 3 categories have been provided. The 4^th category which seeks financial documentation including audited financial statements has not. The Defendants in August 2022 informed the Plaintiff’s solicitors that such documents do not exist. The reasons for this are explained in an affirmation of Mr Ho Yik Lung Simon dated 8 November 2022 which the Defendants have sought leave to rely on. I have granted them leave to do so. The reasons, which of themselves make little difference, are that the Company had been advised it did not need to file tax returns for the relevant period, namely, the financial year ending 31 March 2020 onwards. It was assumed mistakenly, I anticipate, that it would not be necessary for the Company to keep accounts or have them audited. It does not seem to be appreciated by the Plaintiff or the Plaintiff’s legal team that on the providing of that affirmation, there was no purpose in the originating summons being brought on for hearing as the only issue was costs and the Defendants had offered to pay the Plaintiff’s costs on 2 August 2022 when they first informed the Plaintiff’s lawyer of the matters I have just explained.

2.I have some difficulty understanding the Plaintiff’s legal team’s thinking in not recognizing this and even before me initially seeking a substantive order. Suffice to say, it is clear in my view that the appropriate order is that there be no order in respect of the documents of which disclosure and inspection are sought in the originating summons.

3.So far as costs are concerned, I will make an order that the Defendants pay the Plaintiff’s costs up to and including 18 November 2022. The costs thereafter, including the costs of this hearing, have been unnecessarily incurred and I order that the Plaintiff pays the Defendants the costs from 19 November 2022 thereafter.

Mr Napoleon Wong, instructed by Ricardo Lee & Associates Law Office for the Plaintiff

Mr Martin Ho, instructed by Tony Kan & Co. for the 1^st and 2^nd Defendants