Lam Suk Fun v. Choy Ying Keung Kenny

DCMP003678/2000

DCMP3678/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 3678 OF 2000

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Coram: H H Judge Carlson in Chambers

Date of Hearing: 6 June 2001

Date of Judgment: 6 June 2001

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J U D G M E N T

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1.This matter is fixed for trial on the 18th of this month. It all started as a fairly straightforward vendor and purchaser summons which was issued by the plaintiff on 21 December last year. A hearing date was given, fixed for 9 May.

2.On 7 May, I heard an application by the defendant who is the vendor, to adjourn the hearing in order that he might bring third party proceedings against the solicitors who were acting for him in that conveyance. That was done on the basis that the third party proceedings would be within the District Court jurisdiction as amplified to $600,000 and I was persuaded to adjourn the matter. One of the considerations which I took into account was that a hearing date could be given soon after 9 May, that is to say on 18 June, which was available. The third party proceedings were duly issued and they really constitute a full-scale negligence action against the solicitors.

3.I am now asked to transfer everything into the High Court because the potential claim against the third party is $1.6 million which of course is a long way out of the range of the jurisdiction of this court. If I were to do that, I am perfectly satisfied that the matter would not be heard for at least a year and I think there is some force in what Mr Withington says (he appears for the third party) that the judge seised of the matter in the High Court and seeing that it is in fact a full-scale negligence action against a firm of solicitors would require the matter to be pleaded in the conventional way and that would merely serve to delay matters even further.

4.What I have got to do today is to perform a balancing exercise. So far as the plaintiff is concerned, this is a straightforward vendor and purchaser summons, a procedure which is designed to deal with these disputes in a fairly summary way and certainly quickly. It is a modest claim, in the sum of $162,000. This is the amount of money which he borrowed from the Housing Authority to purchase this property. The conveyance now having fallen through, the Housing Authority perfectly naturally want their money back and he is being pressed for that, I think on a daily basis, if I can put it in that way. If I were to adjourn the matter, his position would be quite intolerable and I do not think I should allow that to happen.

5.There is also, I think, very real force in what Mr Withington says that this matter is potentially going to grow into full-scale litigation which perhaps is out of all proportion to the really rather modest problem which it now is, and so what I am going to do is to refuse the application.

6.I shall also adjourn the third party proceedings generally and those proceedings are not to be restored until after the disposal of the vendor and purchaser summons on 18 June. So that is the order that I make and then we will see how the court rules in respect of that vendor and purchaser summons and I shall give further directions as to the third party proceedings after I have done that. So that is the order.

(Discussion re costs)

7.Costs to the plaintiff and the third party against the defendant in any event.

8.Legal Aid taxation of the plaintiff's costs.

Representation:

Mr C H Yeung, of Kenneth C C Man & Co., assigned by the Legal Aid Department, for the Applicant

Mr Joseph Lam, instructed by Messrs Au Yeung, Lo & Chung, for the Respondent

Mr Withington, Solicitor of Messrs Barlow Lyde & Gilbert, for the Third Party