Chiu Sze Ho Julia v. Chow Kwok Kong Eddie
Read the full judgment text of DCCJ 2713/2020 on BabelCite. This District Court judgment was delivered on 9 April 2025.
1. This is the PTR for a water-seepage trial scheduled to start on 9 June 2025 , with 10-13 and 16 June 2025 also reserved.
Cites 2 cases
|
DCCJ 2713/2020 [2025] HKDC 646 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 2713 OF 2020 -------------------------
-------------------------
------------------------- DECISION ------------------------- 1.This is the PTR for a water-seepage trial scheduled to start on 9 June 2025, with 10-13 and 16 June 2025 also reserved. 2.Ms Valerie Tang instructed by Ng, Au Yeung & Partners acts for the plaintiff (“P”). Mr Brian Tse of Leung & Lau acts for the defendant (“D”). By a consent summons filed on 7 April 2025, the parties had agreed interlocutory judgment on liability should be entered against D, leaving the question of relief to be tried. The original trial dates are by my order dated 8 April 2025 to be kept for determining the question of relief. I gave many other directions on 8 April 2025, including directing the parties to read my decision in Lau Tin Fai v Gold Regal International Ltd [2025] HKDC 608 which made suggestions as to how the terms of any mandatory injunction in a typical water-seepage case should be drafted so as to ensure they meet the modern requirement of legal certainty. 3.Given the above, I thought the way forward should be simple, and only a limited number of directions should be given today. In a most awful turn of events Mr Brian Tse of Leung & Lau, acting on behalf of D, stood up and made a surprise oral application for stay of proceedings, doing so without a summons, without an affirmation, without a skeleton, without prior warning to this court or to his professional opponent, and without any appreciation as to how appalling his behaviour was. It was an unacceptable ambush. I do hereby condemn the horrendous behaviour of Mr Brian Tse of Leung & Lau in the strongest terms possible. 4.Be that as it may, I heard the oral application. I dismiss it for the following reasons. 5.As should be well-known, all trial dates in all civil actions are “milestone dates” and §42 of PD5.2 reads as follows: -
6.In light of that, I repeatedly invited Mr Brian Tse of Leung & Lau to identify the alleged exceptional circumstances. The face of Mr Tse went blank. It seemed clear to me Mr Tse did not understand the reference to “exceptional” circumstances. Mr Tse simply alleged, without evidential foundation of any kind, that after 5 years of litigation, the parties were close to a full and final settlement. It is difficult to see how parties’ negotiations could amount to “exceptional” circumstances because almost all parties in all civil actions would negotiate for settlement throughout the course of the proceedings and as such negotiations are wholly unexceptional. I invited Mr Tse to explain why negotiations could be viewed as exceptional. Once again his face went blank. There was no comprehensible answer. I hereby reject Mr Tse’s submission that I should stay the whole of the proceedings and vacate the trial dates some 5 years after the commencement of this civil action just because he stood up and boldly alleged the parties were close to a full and final settlement. Unless and until there actually is a full and final settlement, the trial shall proceed, and both parties should prepare for it. 7.Practitioners are encouraged to learn §42 of PD5.2, and try to understand what “exceptional” means in this context. 8.If practitioners need guidance, they can read what was said by DDJ Grace Chow in Chung Suet Wan v Chung Suet Han [2023] 3 HKLRD 359 [2023] HKDC 808 (§§40 to 47). I agree with what the Learned Judge said. The best example of things which may well qualify as “exceptional” would be an unexpected medical condition of a key witness. The case law refers to this as yielding to the vicissitudes of life. I deliberately used the term “medical condition” as it does not have to be an illness. I am aware of one case where the condition in question was an unexpected pregnancy, with medical evidence given via an affidavit proving to the satisfaction of the court that the expected due date of the child fell on the date the mother was to give live oral evidence. That trial being a defamation trial with no objective urgency, the trial was refixed so that the mother could deliver the baby first. To my knowledge that matter had since settled. 9.I should record that in our present case D was a man incapable of being pregnant. There was no suggestion he was pregnant or ill. In any case, it was P’s position that the water-seepage was serious and on-going so that P had a genuine need for a timely mandatory injunction compelling D to take specified actions stopping the water-seepage. All these point to the need for the trial to go ahead as scheduled. The trial shall proceed. 10.The directions I gave yesterday shall continue to be effective. 11.All things considered, I hereby make the following order: -
12.I thank Ms Valerie Tang for her most able assistance.
Ms Valerie Tang, instructed by Ng, Au Yeung & Partners, for the plaintiff Mr Brian Tse of Leung & Lau for the defendant |