Pc Enterprises (HK) Limited and Others v. Callum Trevor Lam and Another

HCA 1692/2019

[2025] HKCFI 1514

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1692 OF 2019

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DECISION

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1.By Summons dated 24 February 2025 (“the Summons”), the 2^nd Defendant (“D2”) applies to inter alia: (1) restore the strike out application taken out by the Defendants (“Ds”) on 20 November 2023 (“the Strike Out Application”); (2) adduce fresh evidence in support of the Strike Out Application; (3) adjourn CACV 430/2024, HCSD 23/2024 and HCSD 24/2024 until the determination of the Strike Out Application; and (4) restrain the Plaintiffs (“Ps”) from further legal proceedings against Ds until the determination of the Strike Out Application.

2.The Summons is supported by an Affirmation of D2 dated 24 February 2025 (“the Affirmation”).

3.In fact, this is the third similar application by Ds/D2 to restore the hearing of the Strike Out Application.  By application by letter dated 13 March 2024, Ds wrote to reinstate the hearing of the Strike Out Application which was vacated by Master Kent Yee on 25 January 2024.  However, that application was dismissed by Order of the Master dated 5 April 2024.  On 31 October 2024, in response to Ds’ attempt to fix a hearing for the Strike Out Application, Master MK Liu had made an order than no hearing should be fixed at the present stage for the hearing of the Ds’ Summonses, which included the Strike Out Application, until after determination in HCSD 23/2024 & 24/2024 and CACV 430/2024 (on appeal from HCSD 51/2023) (“the Order”).  Whilst HCSD 23/2024 and HCSD 24/2024, whereby both the 1^st Defendant and D2 sought to set aside statutory demands, were dismissed by DHCJ Kent Yee by a Decision dated 10 January 2024 (“the Decision”), CACV 430/2024 is still pending determination by the Court of Appeal (“CA”).

4.In so far as in the Affirmation, it is alleged that the Order resulted in prolonged delay, is inconsistent with the underlying objectives under the CJR etc, to argue that the hearing of the Strike Out Application should be restored for hearing before CACV 430/2024, this is plainly misconceived when there is no appeal against the Order.  Besides, plainly the Order was made in the exercise of the discretion of the Master over case management matters for which an appellant court will not intervene save in wholly exceptional circumstances.

5.As for the application for leave to adduce fresh evidence, no draft of the affirmation sought to be adduced has been provided.  In the Affirmation at §44 only a broad description of the evidence sought to be adduced is given, mainly the findings of the Veterinary Surgeons Board (which is said have been issued on 21 November 2023) and other correspondence.  Although D2 has said that he only obtained the findings after it had been issued, which would have been after the date of filing of D2’s affirmation in support of the Strike Out Application, no explanation is given why an application is only taken out now.

6.As for the application to adjourn HCSD 23/2024 & HCSD 24/2024, as those proceedings have already been determined at the time of taking out of the Summons, the application is plainly misconceived and is academic.  In respect of CACV 430/2024 and given leave to appeal has been granted on 1 April 2025 in respect of HCSD 23/2024, I can see no conceivable basis or jurisdiction for this court to adjourn those proceedings which are now before the CA.

7.As for the application seeking to restrain Ps from further legal proceedings, it seems to me the crux of what D2 has complained about is the issue of statutory demands against Ds which is regarded as tactical, vexatious and amount to an abuse of process: see the Affirmation e.g. at §§6, 105-115, 125, 130 and 132.  Given in the Decision (see §§41-42), and the Decision of Madam Recorder Eva Sit SC dated 19 September 2024 ([2024] HKCFI 2418) (see at §30), similar arguments were raised and dismissed which is now being appealed in CACV 430/2024, to raise the very same issue by this application which will be considered by the CA is plainly pre-mature and/or an abuse of process and/or vexatious.

8.For all the above reasons, I am of the view the Summons is misconceived and ought to be dismissed with costs against D2.

9.Ps are to lodge and serve a statement of costs (limited to 2 pages) within 7 days hereof and D2 to lodge and serve any objections (limited to 2 pages) within 7 days thereafter for summary assessment by me on paper.

Ms Stephanie Ching, of Pinsent Masons, for the 1^st to 4^th Plaintiffs

The 2^nd Defendant appeared in person