Fortis Bank Asia HK v. Sino Global International Ltd and Others

HCMP004950/2001

HCMP4950/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4950 of 2001

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HCA298/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 298 of 2002

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Coram: Hon. Reyes J in Chambers

Date of Hearing: 26 January 2004

Date of Judgment: 26 January 2004

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J U D G M E N T

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1.I would allow the appeal against the Master's order allowing joinder of Li, Wong & Lam as a party to Action No. 298 of 2002.

2.The appeal before me seems to involve a matter of case management. Wing Mo v Cosmic Insurance, unrep., HCCT 40 of 2001, 6 June 2002, is authority for the proposition that the stage at which Actions 4950 and 298 have reached and the delay that may be caused by the proposed joinder are factors to be taken into account in deciding whether to permit joinder.

3.I am concerned about the delay that the introduction of the solicitors as a party to 298 is likely to bring to these proceedings. I do not agree with Mr Leong SC that because the bank conceded to the re-amendments in 4950 that there will inevitably be delay to 4950 and 298 in any case.

4.The ambits of the proceedings with and without the proposed joinder are not the same. The allegation against the bank is whether the solicitor's knowledge can be attributed to the bank, whether or not the solicitors were negligent. The proposed action against the solicitors alleges negligence against them, whether or not their knowledge can be attributed to the bank.

5.There are, indeed, overlapping issues. But I suspect that the facts to go into in the solicitors' negligence inquiry will be much greater. The questions to be gone into in the application vis-à-vis the bank will largely be a question of law as to the knowledge that can be attributed to an agent.

6.Delay in this matter would come on top of time already lost in respect of Wall International's and Great Honour's allegations in 4950 relating to fraud. These allegations have since been abandoned without explanation.

7.I am also not satisfied with the explanation for the time interval in taking out the joinder application. I refer here to the time between April 2003 (when it is said that Jimmy Wong's involvement was clarified) and September 2003 (when the application for joinder was taken out).

8.I am conscious of the danger of limping judgments. In my view, the appropriate course is for Great Honour and Wall International to proceed separately against the solicitors for the time being. The onus would then be on Great Honour and Wall International to advance those separate proceedings with dispatch such that, if they are able to catch up with the main proceedings in 4950 and 298, they can apply at that stage for consolidation.

(Submissions on costs)

9.The costs before me are to go to the plaintiff, that is, to the bank, in any event, to be taxed if not agreed.

10.I will reverse Master Au Yeung's order awarding 50 per cent of the costs in relation to the joinder issue against the bank. I will reverse that order to that extent. I order instead that the costs of the bank in relation to the issue of joinder be paid by Great Honour and Wall International to the bank.

11.In relation to the other costs before the Master on the joinder issue (that is, the costs of Ko Yin and Sino Global before the Master), I give Ko Yin and Sino Global liberty to apply on the question whether, in the light of what has happened today, the costs order of Master Au Yeung on the issue of joinder should be altered in any way.

Representation:

Mr C W Ling, instructed by Messrs Wilkinson & Grist, for the Plaintiff in HCMP No. 4950 of 2001

The 1st and 4th Defendants (By Original Action) and Plaintiff (By Counterclaim) in HCA No. 298/2002, represented by Messrs Alan Ho & Co., absent

Mr Alan Leong, SC, and Mr Bernard Man, instructed by Li & Partners, for the 2nd and 3rd Defendants in HCMP No. 4950/2001 and the Plaintiffs (By Original Action) and 2nd and 3rd Defendants (By Counterclaim) in HCA No. 298/2002

Remarks:
Appeal by 2nd and 3rd Defendants to Court of Appeal. Appeal allowed. Please refer to the appeal judgment of CACV000041/2004.