Success Lane Development Ltd v. Fergurson Hong Kong Ltd t/a New World Millennium Hong Kong Hotel

DCCJ 2191/2023

[2024] HKDC 452

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2191 OF 2023

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DECISION

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Introduction

1.By Notice of Appeal dated 24 January 2024 (“the present Notice of Appeal”), the Plaintiff (“P”) sought to appeal against the decision of Master Stanley Ho (“Learned Master Ho”) given on 23 January 2024 in which it was ordered that P’s summons dated 16 January 2024 be dismissed, with costs to the Defendant (“D”).

2.In the present Notice of Appeal, P further asked this Court to:

(a)  set aside the Order of the Learned Master Ho given on 23 January 2024; and

(b)  stay the execution of the Order given by the Learned Master Ho dated 27 December 2023 regarding D’s summons for discovery and inspection.

3.On 23 February 2024, the appeal hearing was heard and I said the judgment would be handed down on 20 March 2024.

4.On 27 February 2024, P, without leave of court, filed to this Court a letter enclosed with P’s Supplementary Skeleton Argument Submissions in which P applied to this court for requesting D to answer the 9 questions stated therein. I refused P’s application and said that the reasons for the refusal would be included in the Judgment to be handed down on 20 March 2024. And now I do.

Background

5.The present proceedings originate from D’s right of lien over P’s belongings on the ground of unpaid room rentals and storage fees in the sum of HK$265,280. Prior to D’s action to exercise the said right of lien, P commenced the present proceedings against D for the loss and damages of P’s belongings in the sum of HK$2 million.

6.Both P and D are registered companies in Hong Kong. Ms Yung Mei Chun Jessie (“Yung”) and her husband Mr Cheung Moon Hoi (“Cheung”) are the directors of P. D was the proprietor of New World Millennium Hong Kong Hotel (“the Hotel”).

7.On 13 March 2022, Cheung rented a room of the Hotel (“the Room”). He and Yung (“the Couple”) have stayed in the Room from 13 March 2022 to 4 September 2022. The total period of the Couple’s staying in the Hotel could be divided as follows: (i) from 13 March 2022 to 12 April 2022 (“the First period”), (ii) from 13 April 2022 to 11 July 2022 (“the Second period”) and (iii) from 12 July 2023 to 4 September 2022 (“the Last period”).

8.The rentals of the Room for the First period were at an average rate of HK$550 per night (“the First Contract”). During this period, the Couple moved about 200 packs (as alleged by P) of belongings (“the Belongings”) into the Room.

9.On or around 13 April 2022, Cheung signed for and on behalf of P a written agreement known as “Long Stay Room Contract” dated 13 April 2022 (“the Second Contract”) whereby P rented the Room from 12 April 2022 to 11 July 2022 at an average daily rate of HK$400.

10.On 4 September 2022, P alleged to attempt to move out and settle the room rentals of the Room but D refused it by alleging a higher rental rate for the Room. Moreover, P asked to retrieve the Belongings and was denied by D due to the outstanding unpaid room rentals.

11.During the period from September 2022 to May 2023, P alleged to have sent emails to D requesting for the return of the Belongings but was in vain.

12.D did not accede to P’s requests on the ground of their entitlement to a lien over the Belongings in common law. In common law, an innkeeper has a lien for a guest’s unpaid bill over all the goods brought by the guest until the bill is paid. D in this action as a hotel proprietor is an innkeeper.

13.On 11 May 2023, D informed P that the Belongings would be moved from the Room to the storage area of the Hotel (“the Storage Area”) with a daily storage fee. On 18 May 2023, the Belongings were removed by D from the Room to the Storage Area which is located in the underground car park of the Hotel.

14.On 7 to 8 September 2023, due to the Black Rainstorm, a water overflow incident occurred and affected the Storage Area. This caused P to take out a summons to amend the amount of damages in the original claim from HK$2 million to HK$3 million so as to reflect the alleged damage done to the Belongings during the Black Rainstorm.

15.In addition to D’s claim for the outstanding room rentals and storage fees of the Belongings, D also sought court’s order for a power of sale of the Belongings pursuant to section 5 of the Hotel Proprietors Ordinance, Cap 158 (“HPO”) which empowers a hotel proprietor to sell by public auction any property which may have been deposited with him, where the guest depositing such property shall be or become indebted to him for any board or lodging.

Procedural History

16.I think a relatively comprehensive procedural history of this action may help understanding the intertwining effects of the applications taken out by parties.

17.On 2 June 2023, P initiated legal proceedings against D for loss and damages in respect of the Belongings which were removed to the Storage Area by D.

18.On the same day, P made an urgent ex parte application for an injunction order (“the First Ex-parte Application”) without giving notice and of the hearing to D. This application was dismissed by HH Judge Harold Leong ( “Learned Judge Leong” ).

19.On 12 July 2023, P made another urgent ex parte application for an injunction order in almost identical terms of the First Ex-parte Application (“the Second Ex-parte Application”). Again, P did not give notice of the Second Ex-parte Application and of the hearing to D. The Learned Judge Yip granted an Ex-parte injunction order to P and scheduled the Return Hearing. (“the Ex-parte Injunction Order”).

20.On 14 July 2023, D filed the Defence and Counterclaim raising counterclaim for room rentals and storage fees in arrears and an order/‌declaration for selling the Belongings to satisfy D’s counterclaim.

21.On 18 July 2023, D applied for a stay of the Ex-parte Injunction Order and this stay application was granted by Deputy District Judge Michelle Lam (“Learned DDJ Lam”).

22.On 28 July 2023, P filed Amended Statement of Claim (“ASOC”).

23.On 11 August 2023, D filed Amended Defence and Counterclaim (“ADCC”).

24.On 8 September 2023 which was the last day for P to file Reply and Defence to ADCC, P took out a summons for time extension to file Reply and Defence to ADCC.

25.On 21 September 2023, the hearing for P’s application for continuation of the Ex-parte Injunction Order until the trial of this action or further order of the court was heard by the Learned DDJ Lam.

26.On 22 September 2023, prior to the decision of the Learned DDJ Lam on P’s application to continue the Ex-parte Injunction Order, P made another ex parte application for an injunction order of more or less the same terms (“the Third Ex-parte Application”).

27.On 25 September 2023, the Learned DDJ Lam delivered decision dismissing P’s application to continue the Ex-parte Injunction Order (“the 25 September Decision”).

28.On 28 September 2023, P took out an ex parte summons for an application to stay the 25 September Decision.

29.On 29 September 2023, the Learned Judge Leong heard and dismissed the Third Ex-parte Application and also P’s application to stay the 25 September Decision (“the 29 September Decision”).

30.On 12 October 2023, P filed an application for leave to appeal against the 25 September Decision.

31.On 19 October 2023, the Learned Master Chek ordered P to file the Reply and Defence to ADCC by 16 November 2023.

32.On 16 November 2023 which was the date extended by the Learned Master Chek to file its Reply and Defence to ADCC, P took out another summons for leave to re-amend ASOC (“the Re-amend ASOC summons”).

33.On 20 December 2023, D took out a summons for specific discovery of P’s documents and a joint inspection of the Belongings (“the Discovery & Joint Inspection summons”).

34.Both the Re-amend ASOC summons and the Discovery & Joint Inspection summons were scheduled to be returnable on 27 December 2023.

35.On 27 December 2023, the returnable date for the two summonses mentioned in the preceding paragraph, P took out a summons to stay the Discovery & Joint Inspection summons pending P’s appeals against the 25 September Decision and the 29 September Decision (“the 1^st stay summons”).

36.On the same day, the Learned Master Ho dismissed the 1^st stay summons with costs to D summarily assessed at HK$700. The Learned Master Ho also ordered that both the Re-amend ASOC summons and the Discovery & Joint Inspection summons be adjourned for argument before a judge on 27 March 2024, and thereby giving directions for the parties to file their respective affirmations and skeletons, in particular that P was ordered to file and serve an affirmation in opposition to the Discovery & Joint Inspection summons on or before 24 January 2024 (“the 1^st Order”).

37.On 16 January 2024, P took out a summons to stay the 1^st Order (“the 2^nd stay summons”).

38.On 23 January 2024, the 2^nd stay summons was heard by the Learned Master Ho who dismissed it with costs to D summarily assessed at HK$700 (“the 2^nd Order”).

39.On 24 January 2024, P filed the present Notice of Appeal to appeal against the 2^nd Order. P further asked for the order of this Court to:

(a)  set aside the 2^nd Order; and

(b)  stay the execution of the 1^st Order regarding D’s Discovery & Joint inspection summons.

40.On the very day P filed the present Notice of Appeal to stay the 1^st Order, P, pursuant to the 1^st Order, filed and served an affirmation in opposition to D’s Discovery & Joint inspection summons.

41.On 23 February 2024, the hearing for the present Notice of Appeal was heard before this Court.

42.On 27 February 2024, as mentioned earlier, P, without leave of court, filed to this Court a letter enclosing a Supplementary Skeleton Argument Submissions. P’s application therein was refused by this court.

43.On 1 March 2024, P’s application for leave to appeal against the 25 September Decision was refused.

44.On 5 March 2024, P’s application for leave to appeal against the 29 September Decision was also refused.

45.The adjourned hearing for P’s Re-Amend ASOC summons and D’s Discovery & Joint inspection summons was scheduled on 27 March 2024.

Plaintiff’s Grounds of this Appeal

46.I have considered all the submissions advanced by the parties and hereby summarized and dealt with the main submission points hereinbelow.

47.First, P submitted that the 1^st Order by which the parties were ordered to proceed with the Discovery & Joint Inspection summons was against Order 24 of the Rules of District Court, Cap 336H (“the RDC”). Quoting O 24, r 3 of Hong Kong Civil Procedure, P submitted that the pleadings in this action have not yet been closed and the practice was to refuse discovery before the close of pleadings save in exceptional circumstances.

48.Secondly, P quoted O 24, r 8 of Hong Kong Civil Procedure and argued that conducting inspections and assessing damages to the Belongings was unnecessary. Since D was denying liability, P also argued that quantifying damages was premature before liability was established.

49.Thirdly, P contended that proceeding with the inspection and loss assessment was unnecessary at this stage and would be contrary to Order 1A, rule 2 of RHC as detailed in Order 1A, rule 1.

50.Fourthly, P submitted that court must first establish D’s liability before assessing the quantum of damages. Referring to O 24, r 3 and r 8, P argued that it was the court’s responsibility to shield P from D’s attempts to exploit P’s inventory list for building a defence.

51.Fifthly, P submitted that the grant of D’s application would render P’s appeal to the Court of Appeal moot and ineffective.

Defendant’s Oppositions

52.Firstly, D argued that the present appeal was in effect an attempt to appeal against the 1^st Order and thus was out of time and therefore should be dismissed.

53.Secondly, D contended that the 1^st Order was a case management decision which was generally not susceptible to appeal unless the Learned Master has erred in point of law.

54.Thirdly, D submitted that the learned Master Ho had rightly dismissed both the 1^st and 2^nd stay summonses, which were in substance used to delay the hearing of the Discovery & Joint Inspection summons without proper legal basis.

55.Fourthly, D submitted the present appeal was merely an abuse of process.

Discussion

The Law

56.Regarding an appeal against the decision of master, unless the Court otherwise orders, the Notice of Appeal must be issued within 14 days after the judgment, order or decision appealed against was given or made. (See Order 58, rule 1(3), the RDC)

57.It is well established that an appeal against master's decision is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time. The judge will give the weight it deserves to the previous decision of the master, but he is in no way bound by it. The judge in chambers is in no way fettered by the previous exercise of the master’s decision. (Hong Kong Civil Procedure 2024, Volume 1, paragraph 58/1/2)

58.Moreover, a judge hearing an appeal from a master, however, is entitled, if he thinks fit, to adopt the master's reasoning in his own judgment without setting out the reasoning himself; by so doing the judge does not fail to exercise the discretion conferred on him. (Hong Kong Civil Procedure 2024, Volume 1, paragraph 58/1/2)

59.More importantly, Practice Direction 5.2, section J, paragraph 38 stipulates that:

“The parties should note that case management decisions are matters within the discretion or the judge making that decision and are generally not susceptible to appeals.”

60.In considering an appeal from a master, one must bear in mind that a master has a wide discretion in case management matters which the appellate court will not interfere, unless the master has erred in point of law. (Smart Trike MNF PTE Ltd and Others v Chiu Sui Chun (趙穗珍) and Others, HCA 847/2013, [2018] HKCFI 562, [2018] HKCU 897 at paragraph 60)

61.In light of the above established legal principles, I remind myself that in general, an appeal from the master to the judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time. The judge will give the weight it deserves to the previous decision of the master, but he is in no way bound by it. The judge in chambers is in no way fettered by the previous exercise of the master’s decision, and on appeal from the judge in chambers, the Court of Appeal will treat the substantial discretion as that of the judge, and not of the master. However, in relation to an appeal against a case management decision made by a master, it has been said that a judge should not lightly interfere with the decision of the master and should only do so for good reason, for instance, the master has erred in point of law.

Abuse of Court Process

62.D contended that the present appeal was issued as an appeal against the 2^nd Order but was in effect an appeal against the 1^st Order and hence it was a back door attempt to appeal against the 1^st Order out of time without leave of court. Regarding the issue of appealing out of time, P submitted that the present Notice of Appeal referred to the 2^nd Order and that D was wrong to relate the present appeal to the 1^st Order. Concerning the back door attempt issue, P merely submitted that D’s contentions were totally unrelated and P could not understand D’s logic.

63.On the returnable date for D’s Discovery & Joint Inspection summons and P’s Re-amend ASOC summons, ie 27 December 2023, P took out the 1^st stay summons to stay D’s Discovery & Joint Inspection summons pending P’s appeal against the decision of the Learned DDJ Lam dated 25 September 2023 and the decision of the Learned Judge Leong dated 29 September 2023. The Learned Master Ho issued the 1^st Order dismissing the 1^st stay summons on the same day, ie 27 December 2023 and gave directions to parties to file their respective affirmations and skeletons for the P’s Re-amend ASOC summons and D’s Discovery and Joint Inspection summons for the argument hearing scheduled on 27 March 2024.

64.According to Order 58, rule 1(3) of the RDC, the Notice of Appeal for appealing against the order or decision of master must be issued within 14 days after the said order or decision. Thus, the notice of appeal against the 1^st Order, if any, should have been issued on or before 10 January 2024. P however did not do so.

65.Six days after the expiry date for appealing the 1^st Order, ie on 16 January 2024, P, instead of lodging an appeal against the 1^st Order, took out the 2^nd stay summons to stay the execution of the 1^st Order.

66.In order to understand D’s back door attempt submissions, one has to first look at what P was asking in the 1^st stay summons. In the 1^st stay summons, P was asking the Learned Master Ho to inter alia stay D’s Discovery & Joint Inspection summons. The Learned Master Ho dismissed P’s application to stay D’s summons. It is obvious that the Learned Master Ho did not think that D’s summons should or could be stayed. Logically, he further made directions for parties to proceed with D’s summons, ie filing affirmations and skeletons for the scheduled hearing.

67.In the 2^nd stay summons, P sought to stay the 1^st Order, ie the Learned Master Ho’s decision not to stay D’s summons and also his directions to proceed with D’s summons, and setting aside the costs order given on 27 December 2023. In effect, it was appealing against the Learned Master Ho’s decision on 27 December 2023 to (i) let D’s summons to proceed and also his directions for proceeding with D’s summons; and (ii) the costs order in favour of D.

68.In the premises, I agree with D’s submissions that the issue of the 2^nd stay summons was tantamount to a backdoor way of appealing against the 1^st Order, the appeal period of which has already expired. It is in effect an out-of-time appeal but without leave against the 1^st Order and thus an abuse of court process. This Court is of the view that one should not be allowed to get round Order 58, rule 1(3) of the RDC by appealing the decision of the Learned Master out of time but without leave. Even putting P’s case to the highest that leave be granted to P to appeal against the 1^st Order out of time, this Court would come to the same conclusion to dismiss the P’s appeal application on the grounds of the below analysis.

Case Management Decision

69.Apart from dismissing P’s application to stay the Discovery and Joint Inspection summons, the Learned Master Ho in the 1^st Order also adjourned the said summons for argument, thereby directing parties to file affirmations and skeletons for the said summons.

70.As mentioned in the above, paragraph 38 of Practice Direction 5.2 clearly states that case management decisions are matters within the discretion of the judge making that decision and are generally not susceptible to appeals.

71.It is confirmed in Smart Trike MNF PTE Ltd and Others v Chiu Sui Chun (趙穗珍) and Others that a master has a wide discretion in case management matters which the appellate court will not interfere, unless the master has erred in point of law. (Smart Trike MNF PTE Ltd and Others v Chiu Sui Chun (趙穗珍) and Others, HCA 847/2013, [2018] HKCFI 562, [2018] HKCU 897 at paragraph 60)

72.Dismissing P’s 1^st stay summons means the Learned Master Ho was of the view that the said summons should be heard. He then moved on to give directions for hearing the said summons rightly. In the 3‑minute reserve hearing, he gave appropriate directions ordering parties to file affirmations and skeletons for the said summons application to be heard by a Judge on 27 March 2027. The Learned Master Ho was indeed exercising his discretion to do case management matters for proceeding the said summons to be heard by the Judge. And I do not find the Learned Master Ho had erred in point of law. That being so, the 1^st Order, which was substantially a case management decision, in my view, was not susceptible to appeal in the present circumstances.

73.At the hearing, P argued that the Learned Master Ho could have adjourned P’s stay application rather than dismissing the whole stay application on 27 December 2023. This argument simply lacks logic in reality. In the 1^st stay summons, P was seeking to stay the Discovery and Joint Inspection summons. The court, upon valid reasons, should either: (i) dismiss the stay application and make further case management directions for the summons; or (ii) allow the stay application and make no further case management directions. Adjourning the stay application of the Discovery and Joint Inspection summons would in effect hinder the process of case management, ie filing affirmations and skeletons for the hearing of the D’s Discovery and Joint Inspection summons and P’s Re-amend ASOC summons.

74.As what was held in Re Chime Corporation Ltd (HCMP 4146/2001, unrep, 11 March 2005, at paragraph 14), the correct approach in an application for a temporary stay of proceedings was to consider the balance of convenience and fairness as between the parties and the court should exercise its discretion in such a manner to ensure that its procedures are used in a logical, fair and cost-efficient manner. The question was not a question of deprivation of the rights of a litigant to proceed altogether, but a question of case management. I find this approach is applicable in the present case.

75.Again, the whole purpose of the 1^st stay summons was to stay the Discovery and Joint Inspection summons. P should not have initiated the stay application but prepared the argument hearing for this summons. If P has valid ground for opposing the Discovery and Joint Inspection summons taken out by D, the judge would not allow D’s application. There is in fact no need for P to take out the stay application. By the same token, after the Discovery and Joint Inspection summons had been adjourned in the 1^st Order to 27 March 2023 for arguments, P should not have taken out the 2^nd stay summons but focused on preparing the hearing of the Discovery and Joint Inspection summons on 27 March 2023 instead.

76.Last but not the least, in the 1^st Order, the Learned Master Ho not only dismissed the 1^st stay summons but also gave directions for the parties to file their respective affirmations and skeletons for the Discovery & Joint Inspection summons, in particular that P was ordered to file and serve an affirmation in opposition to on or before 24 January 2024. And, P did, in pursuant to the 1^st Order, file her affirmation in opposition on 24 January 2024. The whole purpose of and genuine necessity for case management is manifested.

77.Although the present appeal can be disposed of by the grounds as mentioned in the above, I, for the sake of completeness, would deal with P’s grounds hereinbelow.

Close of Pleadings

78.P argued that the pleadings of this action have not been closed and therefore P’s Discovery summons application should be refused.

79.According to Order 18, rule 20 of RDC, pleadings in an action are deemed to be closed at the expiration of 14 days after service of the reply or, if there is no reply but only a defence to counterclaim, after service of the defence to counterclaim. And, pleadings in an action are deemed to be closed at the time under this Order notwithstanding that any request or order for particulars has been made but has not been complied with at that time.

80.In the present case, D has filed ADCC on 11 August 2023. On 8 September 2023 which was the last day for P to file Reply and Defence to ADCC, P took out a summons for time extension to file the same. It was ordered on 19 October 2023 that the Reply and Defence to ADCC be filed by 16 November 2023. And, on 16 November 2023, P took out another summons to seek leave from the court to re-amend the ASOC. And the Re-amend ASOC summons has been scheduled to be heard on 27 March 2024.

81.Thus, according to Order 18, rule 20 of RDC, the pleadings of this action has been closed either on 30 November 2023, ie 14 days after the date extended for filing the Reply and Defence to ADCC or 25 August 2023, ie 14 days after the service of the ADCC. Moreover, despite P’s application to re-amend the ASOC, pleadings in this action have been deemed to be closed as described herein under Order 18, rule 20 of RDC. Whether leave to re-amend the ASOC will be given to P on 27 March 2023 will not change the fact that the pleadings of this action have been deemed to be closed. Parties can always seek leave to amend pleadings even after the close of pleadings.

82.In light of the above analysis, P’s argument that pleadings have not been closed cannot stand. Even if I am wrong on this point and this pleading argument should be accepted by the court, in any event, it shall be determined by the Judge in the argument hearing on 27 March 2024 to decide whether the terms sought in the D’s Discovery & Joint Inspection summons should be granted.

Pending the appeals of the two Decisions

83.In the 1^st stay summons, P applied to stay the Discovery and Joint Inspection summons pending P’s appeals against the decision of the Learned DDJ Lam dated 25 September 2023 and the decision of the Learned Judge Leong dated 29 September 2023.

84.In the present appeal hearing, P referred this Court to Song Lihua v Lee Chee Hon (HCA 1747/2022 [2023] HKCFI 2429) and argued that the summons application should be stayed as a matter of case management if the case was subject to appeal. Accordingly, P averred that the D’s Discovery & Joint Inspection summons should be stayed until the outcome of the P’s appeal.

85.In fact, on 1 March 2024, P’s application for leave to appeal against the 25 September Decision was refused since the court concluded that none of the grounds advanced by P had merit and therefore that its intended appeal had no reasonable prospect of success. There also existed no other reason why leave to appeal should be granted in the interest of justice.

86.Further, on 5 March 2024, P’s application for leave to appeal against the 29 September Decision was refused on the ground of that the court was not satisfied that the appeal had a reasonable prospect of success and also that P has not shown that there was some other reason in the interests of justice why the appeal should be heard.

87.By reason of the above-mentioned decisions of the leave application of both the 25 September Decision and the 29 September Decision, I do not see the reason why P’s application to stay the Discovery & Joint Inspection summons pending the said two decisions should be allowed. In other words, P’s submission to stay D’s Discovery & Joint Inspection summons pending the two appeals is no longer a sound argument.

Withholding D’s summons

88.On 19 October 2023, the Learned Master Chek, upon P’s application, extended time for P to file the Reply and Defence to ADCC by 16 November 2023. As discussed in the above, the pleadings have been closed near the end of November 2023.

89.On 20 December 2023, ie well after the close of pleadings in this action, D took out the Discovery and Joint Inspection summons for specific discovery of P’s documents and joint inspection of the Belongings. On one hand, I am of the view that D’s application was taken reasonably in terms of timing. On the other, I am also of the view that P has every right under our legal regime to resist D’s application on valid grounds.

90.In response, P took out the 1^st stay summons on 27 December 2023 to stay D’s summons and a chain of P’s various stay applications and the related leave applications as well as the present appeal began. It is as clear as daylight that the main purpose of P’s applications was to withhold D’s application for specific discovery of P’s documents and joint inspection of the Belongings. And this, in my view, should be dealt with in the hearing of the summons on 27 March 2024.

91.The hearing for the Discovery and Joint Inspection summons was scheduled on 27 March 2024 by the Learned Master Ho in the 1^st Order on 27 December 2023. Indeed, I do not see any constructive purpose served by P’s stay applications and the related applications followed. These have simply and utterly destroyed the case management done in the present action.

92.I am of the view that P’s stay applications should not have been taken out.

93.Apart from the above, P’s arguments in this appeal hearing also include the following arguments:

(a)  conducting inspections and assessing damages to the Belongings was unnecessary by reason of O 24, r 8 of Hong Kong Civil Procedure;

(b)  quantifying damages was premature before liability was established;

(c)  proceeding with inspection and loss assessment was unnecessary at this stage and would be contrary to Order 1A, rules 1 and 2 of RHC;

(d)  court must first establish D’s liability before assessing the quantum of damages; and

(e)  it was the court’s responsibility to shield P from D’s attempts to exploit P’s inventory list for building a defence under O 24, r 3 and r 8.

94.Suffice it to say that even if the above arguments of P would be valid grounds for opposing the D’s Discovery & Joint Inspection application, they should be heard and determined by the Judge in the argument hearing scheduled on 27 March 2024.

Joint Inspection

95.In the present hearing, P submitted to this Court that D has disputed P’s Injunction in particular the relief for inspection and it was confirmed by D that they have taken an opposing stance in the said Injunction application. Hence, P submitted that D’s taking out the Discovery & Joint Inspection summons was a sudden change of stance and further submitted that D, by doing this, was wasting court’s time and parties’ costs and the most serious of all abusing the court process.

96.When the Ex-parte Injunction Order was in force, D was compelled to allow P and its loss adjuster access to the Belongings for inspection and assessing damage of the Belongings. Moreover, D was restrained from prohibiting P from removing the Belongings after the inspection.

97.The Ex-parte Injunction Order was stayed on 18 July 2023 and subsequently discharged by the Learned DDJ Lam in the 25 September Decision.

98.On 29 September 2023, P made another ex parte application to the Learned Judge Leong for an injunction order. In relation to joint inspection, P asked the court NOT to allow D’s expert to open anything but only followed P’s expert. In other words, D’s expert could not inspect the things he/she would like to inspect. With respect, this is not a JOINT inspection. It goes without saying that the Learned Judge Leong has rightly refused P’s application.

99.On 20 December 2023, well after the close of pleadings of this action, D took out the Discovery & Joint Inspection summons for specific discovery of P’s documents and inspection of the Belongings.

100.As shown in the above, it is obvious that P’s right to inspect the Belongings in the Ex-parte Injunction Order was indisputably unilateral and it was therefore understandable that D was once opposing P’s inspection. However, subsequent to the discharge of the Ex-parte Injunction Order and especially after the close of pleadings, parties had to prepare and proceed with the trial of this action. In order to do so, parties had to inspect the Belongings and make assessment in respect of the values of the Belongings, eg by compiling joint expert report by parties’ loss adjustors. It is particularly so when P is now seeking to re-amend the ASOC by claiming damages in the sum of 3 million instead of 2 million.

101.In the premises, it is simply not just and fair to accept P’s argument that D was unreasonable and abusing court process at this stage to seek the discovery including but not limited to the list of inventory of P’s belongings and an joint inspection by the parties’ appointed Loss Adjustors for preparing and compiling the joint expert report. Once again, the issue whether leave would be granted for the D’s Discovery & Joint Inspection summons shall be heard and determined by a judge in the upcoming argument hearing on 27 March 2024. I really do not see the point of staying the entire Discovery & Joint Inspection summons now.

P’s Supplementary Skeleton Argument Submissions

102.The hearing for the present appeal application was heard on 23 February 2024. P has filed 21 pages of written submissions to court while D has filed 7 pages of written submissions and 2 pages of chronology. A total of around 2 hours has been given to both parties for their verbal submissions, notwithstanding that the hearing was fixed by P for 30 minutes only. Parties especially P was given sufficient time to conduct their verbal submissions including making reply submission to the other side. Their statements of costs were submitted and exchanged at the end of hearing. The court has then scheduled for the handing down of judgment. No further application was made by the parties and no leave was given by the court to any party to file any further documents or supplemental submissions.

103.Nevertheless, after the appeal hearing, on 27 February 2024 ,P has without the leave of this Court filed to court a Supplementary Skeleton Argument enclosed in a letter in which P applied to this court for requesting D to answer 9 questions stated in P’s supplementary skeleton argument.

104.P in fact attempted to repeat what she had already submitted to this court at the hearing and tried to elaborate the arguments and at the same time requested D to answer their arguments which D has either disagreed or answered in their submissions. By doing so, P has made repeated attempts in their own way without the leave of court to resubmit their arguments to court which indeed was wasting the court’s time and abusing the court process. Hence, it would not be accepted or entertained by this Court. P’s application was therefore refused by this court on 29 February 2024.

Conclusion

105.By reason of the analysis hereinabove, I hold that P’s appeal application should be refused and thereby the P’s Notice of Appeal dated 24 January 2024 be dismissed. Accordingly, the 2^nd Order made by the Learned Master Ho on 23 January 2024 still stands.

Costs

106.Costs follow the event in that P do pay the costs of and occasioned by the present appeal application to D.

107.D complained of P’s unreasonable behaviours in the present application which constituted abuse of court process and thus asked for costs to D on an indemnity basis.

108.As mentioned in the above, this Court also views that P’s conducts in this application amounted to abuse of court process but having considered all the relevant circumstances in the present appeal application and the related legal principles on costs on indemnity basis in Wang Ho Yin Patrick v Fu Chun Lung & Lai Siu Wai Louis, DCCJ 4814/2014 [2018] HKDC 301 referred to this court by the parties, I make a costs order that P do pay D costs of and occasioned by the present appeal application (including the hearing on 23 February 2024 ) forthwith, on a party and party basis, summarily assessed at HK$16,000 after considering the Statement of Costs submitted by D.

The Plaintiff was represented by its director, Ms Yung Mei Chun Jessie, appeared in person

Mr H Y Leung of Y T Chan & Co, for the Defendant