Yu Man v. Pricewaterhousecoopers
Read the full judgment text of HCA 389/2001 on BabelCite. This High Court CFI judgment was delivered on 10 March 2003.
1. By his notice of appeal filed on 20 February 2003, the plaintiff applies for :
Cites 2 cases
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HCA000389/2001 HCA389/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO.389 OF 2001 ----------------------
---------------------- Coram: Hon Chu J in Chambers Date of Hearing: 6 March 2003 Date of Judgment: 10 March 2003 ------------------------ J U D G M E N T ------------------------ 1.By his notice of appeal filed on 20 February 2003, the plaintiff applies for :
Background 2.On 22 January 2001, the plaintiff commenced this action against the defendant, who is a firm of practicising accountants, seeking for the return or delivery to him of 130,000 shares in Sino Land (0083) ("the Shares") and for damages. The plaintiff's case as appeared from the Indorsement of Claim is that the Shares were wrongfully detained by the defendant in connection with the liquidation of CA Pacific Securities Limited ("CAP Securities"). 3.The defendant filed its Defence on 17 February 2001 disputing the claim on the basis that it discloses no cause of action and is embarrassing and an abuse of court process. In particular, the defendant pleads, inter alia, that :
4.By a summons filed on 15 May 2001, the defendant applied to strike out the Indorsement of Claim and to dismiss the action with costs against the plaintiff. In the supporting affidavit of Mr Doron Michael Karliner, the defendant's solicitor, the grounds for the striking out application were set out. They include, inter alia, that :
5.The defendant's application was heard by the Registrar on 13 September 2001. Extensive arguments in the form of affirmations were filed by the plaintiff. Written submissions were also prepared by the defendant's solicitors covering, among other matters, the points in the supporting affidavit as set out above. After hearing arguments, the Registrar granted the application, struck out the claim and dismissed the action. He also ordered the plaintiff to pay the defendant's costs of the action, but to be taxed on the District Court scale. In so doing, the Registrar had rendered full oral reasons for his decision : see the letter dated 29 January 2002 from the Clerk to the Registrar in reply to the plaintiff's request for reasons for judgment. 6.Subsequent to this, the plaintiff commenced another action in the District Court under DCCJ No.22757 of 2001 for the same cause and seeking the same relief, but against the appointed liquidators of CAP Securities. The action was dismissed with costs against the plaintiff. 7.In the meantime, the plaintiff's objection to the liquidators' classification was heard before Yuen JA (sitting as additional judge of the CFI) on 5 August 2002. By the Decision handed down on 23 August 2002, the objection of the plaintiff was dismissed. More particularly, Yuen JA noted that :
8.The plaintiff is appealing against this Decision in CACV No.347 of 2002. No date has yet been fixed for hearing the appeal. 9.As to the present action, the defendant proceeded to have its costs taxed by way of provisional assessment. The assessment was objected to by the plaintiff. Contested taxation hearings were held on 15 October and 5 December 2002. As a result, the defendant's bill of costs was taxed and allowed at $60,000 odd. The plaintiff applied to review the taxation and after a contested hearing, it was dismissed on 20 February 2003. 10.On the same day, the plaintiff filed the present application for leave to appeal out of time and for a stay of the costs order pending the resolution of CACV No.347 of 2002. 11.On 3 March 2003, the defendant took out a summons seeking an order prohibiting the plaintiff from bringing proceedings against the defendant, CAP Securities or its liquidators, without prior leave of the court and on notice to the liquidators and to Messrs Herbert Smith. Extension of time 12.The time for appealing against the Registrar's Order is 14 days. There can be no doubt that this appeal is seriously out of time. In deciding whether to extend the time for appeal, regards will generally be to :
13.By the time the plaintiff filed his Notice of Appeal, the appeal was out of time by 17 months. The plaintiff has given no reason for not bringing the appeal earlier either in his affirmation in support or in his submissions. All that was said by the plaintiff is that because CACV No.347 of 2002 and this action cover the same issues and subject matter, he now wishes to have the two proceedings dealt with together. This is hardly an explanation for the delay, let alone a good explanation. On the contrary, precisely for the reason that he was litigating the same subject matter and issues in different forum, that this action is prima facie an abuse of process and is liable to be struck out. There is plainly no justification for the long delay. This of course is not necessarily fatal because the primary concern of the court in exercising its discretion to extend the time for appeal is the merits of the appeal. Merits of the appeal 14.In my view, there is absolutely no merits in the appeal. Plainly, there is no claim and no cause of action against the defendant. The defendant is clearly not appointed by the court to be the liquidator of CAP Securities. Liquidators are appointed in their individual capacity and not as representatives of their firm. The fact that the liquidators so appointed happen to be the partners of the defendant firm does not make the defendant the liquidator of CAP Securities or liable as if it were the liquidator. The plaintiff has not additionally demonstrated a legal basis for bringing the present claim against the defendant. The Order of the Registrar cannot be faulted. The plaintiff's assertion at the hearing that he did not hitherto know that this is a ground for striking out his claim is untenable. The defendant has consistently in the Defence, the affidavit leading the striking out application and the submissions for the striking out application made reference to this point. I also understand that this point was among the reasons for striking out the claim given by the Registrar. The appeal is entirely devoid of merits. It is therefore futile to extend the time for appealing. Prejudice to the defendant 15.In addition, the defendant contends that the plaintiff's conduct in these proceedings, notably with regard to the taxation pursuant to the costs order of the Registrar and the bringing of the appeal after a lapse of nearly 17 months have caused inconvenience and prejudice to the defendant. I agree that it is more than a mere coincidence that the plaintiff only brought this appeal after his attempt to review the taxation of the defendant's bill of costs was dismissed. Indeed he had also, in applying to review the taxation, applied to stay the costs order but without success. It is apparent that the plaintiff is seeking to avoid meeting the costs liability owed to the defendant. 16.Given that the plaintiff's present claim against the defendant is misconceived, the plaintiff ought therefore to bear the consequences of an unmeritorious claim, being the costs of the defendant in defending the action. The fact that he is unrepresented does not exonerate him from such a consequence. 17.To conclude, having regard to the very lengthy and inexcusable delay, the lack of merits in the intended appeal and the prejudice occasioned to the defendant, I consider that the court's discretion can only be exercised in one direction, namely, to refuse the extension of time sought. Accordingly, I dismiss the plaintiff's application for leave to appeal out of time. In consequence thereof, the appeal is also dismissed for being out of time. Stay of the costs order 18.The plaintiff also applies to stay the costs order of the Registrar on the basis that the issue in this action, namely whether the Shares were wrongfully detained, is the same as that in his pending appeal against Yuen JA's Decision. I have already observed that this is not an argument that can advance the plaintiff's cause. There is no need and no justification for litigating on the Shares outside HCCW Nos.36 and 37 of 1998. The bringing of this action and the District Court action is clearly an abuse of process. The defendant's right to have their costs reimbursed and paid should not be held in abeyance. There is no basis for staying the costs order of the Registrar and the application for stay is refused. Costs of this appeal 19.There is no reason for departing from the rule that costs follows event. The plaintiff, having failed in the application to appeal out of time, should pay the defendant's costs of the application. 20.The defendant asks for a gross sum costs order under Order 62, rule 9(4)(b) of the Rules of the High Court. I accept that for a short matter like this, a gross sum costs order is appropriate so as to save the time and costs of taxation. The defendant claims a total sum of $12,000, covering three hours of the work of Mr Doron Karliner and two hours' work of a trainee solicitor. I consider the amount of time claimed, which covers also the hearing of the appeal, to be reasonable. Mr Karliner seeks an hourly rate of $3,200. He was admitted in Australia in 1991 and in 2000 in Hong Kong. The primary regard in reckoning the seniority of fee earner is his years of admission in Hong Kong, although his years of experience in other jurisdictions may be taken into account in arriving at an upward adjustment. Applying this principle and having regard to the relatively straightforward nature of this appeal, a reasonable hourly rate for Mr Karliner is $2,800. The hourly rate of $1,200 for the trainee solicitor is a reasonable one. Thus assessed, the appropriate amount for a gross sum costs order is $10,800 (i.e. $2,800 x 3 + $1,200 x 2 = $10,800). The defendant's summons 21.By summons issued on 3 March 2003, the defendant applies for an order prohibiting the plaintiff from bringing any proceeding or application against the defendant, CAP Securities or its liquidators without first obtaining the leave of the court to do so. The application is made without prejudice to the plaintiff continuing with his appeal against the Decision of Yuen JA under CACV No.347 of 2002. 22.A similar order was previously granted against the plaintiff at the instance of the liquidators of CAP Securities in DCCJ No.22757 of 2001. When dismissing the action on 4 June 2002, Deputy Judge A. Chan made the order mentioned above and provided for it to last until 5 August 2002, which was the date of the hearing before Yuen JA that led to the Decision of 23 August 2002. 23.Before Yuen JA, the liquidators applied for the order to be extended, but was refused. Principally, Yuen JA considered that the situation of the plaintiff is different from that in Tse Jeekeen v. H.K . Alliance in Support of Patriotic Democratic Movement in China & Others [2000] 2 HKC 339 CFI, (unreported) CACV No.246 of 2000 CA, that the plaintiff is not seeking to re-litigate matters that had been decided against him at all levels of the court and that it is not a case where it is not possible to redress the abuse of court's process by obtaining costs against the plaintiff. Yuen JA was also of the view that the plaintiff did not hitherto have the benefit of a full explanation of the relevant facts and a thorough analysis in law of his position. 24.The defendant, relying on the plaintiff's persistent attempts to avoid the payment of the defendant's costs, argues that given the full and detailed reasonings in Yuen JA's Decision and the difficulties in obtaining payment of costs from the plaintiff, it is now appropriate for the order to be made. 25.I can fully appreciate the inconvenience and disruptions caused to liquidators and also professionals like the defendant by being dragged into unnecessary litigations. I can therefore understand why the defendant's summons was brought. And although the plaintiff's conduct in challenging the defendant's bill of costs and in seeking to appeal against the dismissal of action is far from being reasonable, I bear in mind that he is not a litigant who has absolutely no interest in the subject matter litigated upon. While he is endeavouring to avoid the payment of costs, it does not necessarily mean that the costs cannot as a matter of fact be recovered. 26.I do not consider the gravity of the situation merits an order at this stage, though if the plaintiff persists in his present course, a different view may be taken. Despite that I do not grant the relief sought in the defendant's summons, I accept that the defendant has a genuine cause for concern, if not a sense of grievance. Accordingly, I make no order as to costs on the summons. Conclusion 27.The Order that I make is as follows :
Representation: The Plaintiff, unrepresented, appeared in person Mr Doron Michael Karliner of Messrs Herbert Smith, for the Defendant |
Cases cited in this judgment
Further hearings and rulings under HCA 389/2001