施華芬 v. 許國雄及另一人

DCCJ5795 / 2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

ACTION NO. 5795 OF 2003

BETWEEN

Before: Deputy District Judge Tracy Chan in Chambers

Date of hearing: 29 March 2005

Date of handing down decision : 1^st April 2005

Reasons for Decision

1.This is an appeal by the Plaintiff from an order made by Master KW Wong on 21 February 2005, by which the Defendants were granted leave for filing an affirmation in opposition to the Plaintiff’s affirmation out of time. Master KW Wong also ordered the Defendants to pay costs to the Plaintiff and made an assessment on such costs to be $200.00, to be paid forthwith.

2.For some background information, the Plaintiff took out a summons on 16 March 2004 for discovery.   The summons was adjourned to 9^th September 2004 for argument with 2 hours reserved. At the same time, directions had been given to parties to file affirmation for purpose of the hearing. It was also ordered that no further affidavit was to be filed by any party without leave of the Court. After hearing parties on 9^th September 2004, Master KW Wong ordered the hearing be adjourned to a date to be fixed before a Master for argument with 3 hours reserved. (Subsequently, it was fixed to be heard on 18^th May 2005.) The matter would be dealt with de novo there and then. Meanwhile, the Plaintiff was granted leave to file and serve affirmation in support within 21 days and the Defendants to do the same within 21 days thereafter, the Plaintiff was at liberty to make a reply within 14 days thereafter.

3.The Plaintiff filed an affirmation on 30 September 2004. On 5^th January 2005, the Plaintiff took out a summons asking for an order under O14A r1 for the Defendants to file and serve an affirmation within 21 days; and under O23A r2 for the Defendants to file and serve the document listed on their List of Documents. The summons was heard on 12^th January 2005 by Master KW Wong. The order made was that paragraph 1 of the summons be dismissed and paragraph 2 of the summons be adjourned to be heard together with the summons taken out on 16^th March 2004, ie. to be heard on 18 May 2005. Again meanwhile, leave was granted to the Plaintiff  to file and serve affirmation in support of her application in paragraph 2 and the Defendants would have leave to file affirmation in opposition within 14 days thereafter, and the Plaintiff was at liberty to file an affirmation in reply within 14 days; no further affirmation without leave of the Court.

4.The Plaintiff then filed an affirmation on 19^th January 2004. So the deadline for the Defendants to file an affirmation in opposition, if any, would be 2 February 2005. On 1^st February 2005, the Defendants took out a summons to be heard on 21^st February 2005 asking for 21 days and costs was conceded. Master KW Wong after hearing parties made an order granting leave for the Defendants to file an affirmation of the 1^st Defendant with costs of $200 to be paid to the Plaintiff forthwith. In fact by the time of the hearing, an affirmation had been filed and served by the Defendants on 8^th February 2005.

The Hearing

5.The Plaintiff appeared in person at the hearing. Her grounds of appeal is as follows:

i)	The affirmation in opposition has been filed on 8th February 2005 and;
ii)	that the costs awarded to her should be on indemnity basis.

6.She also asked for a confirmation from the Defendants whether the 2^nd Defendant would make an affirmation in opposition and if not, reasons for its not doing so. She also asked for an explanation why the 1^st Defendant said what he had said in paragraph 3 of his affirmation filed on 8^th February 2005.

7.This is a hearing de novo. The court explained the procedures of the appeal to the Plaintiff. The court also explained to her that in this hearing, the court would only hear the summons taken out by the Defendants afresh taking into consideration the grounds of appeal set out by her. The other requests made in her “grounds of appeal” as summarised in paragraph 6 hereinabove would not be dealt with in this hearing. She might wish to argue them at the hearing on 18^th May 2005.

The Defendant’s case

8.Mrs. Newman explained to the court that when it was anticipated that they would need more than 14 days to file the affirmation in opposition as it took time to take instructions, they filed a summons on 1 February 2005 to ask for time. A hearing had been fixed to be heard on 21 February 2005. An affirmation signed by the 1^st Defendant on behalf of both Defendants was filed on 8 Feb 2005 before the hearing. It was said that this was to shorten the time. Mrs. Newman further said that they were only 6 days’ late and the Plaintiff should not be prejudiced. Even if she was prejudiced, this was not something which could not be adequately  compensated by costs. Mrs. Newman also argued that this was not a case where costs should be paid on indemnity basis.

The Plaintiff’s case

9.The Plaintiff also made submissions. The majority part of her submission was on the discovery itself or on the issue of whether the Defendants were guilty to her claim. She however conceded that the Defendants should be allowed to file the affirmation out of time.

10.On the issue of costs, relying on O62 r28A(2), she said that if the normal costs for an application like this was $500 for a solicitor as said by Master KW Wong, she should at least get 2/3 out of $500. She should therefore be given more than $200.

11.Upon enquiry made by the court, she said she was not working at the moment, she suffered no loss of income, but on the day of hearing on 21^st February 2005, she was scheduled to see a lawyer who was supposed to give her free legal advice. She could not quantify the damages, if any at all, for having that meeting postponed.

12.After hearing parties, I agree with Mrs. Newman that the delay was 6 days. Although it was not satisfactory, this sometimes happened when a solicitor had to take instructions from clients. I note that the affirmation of the Plaintiff has been attached with a good number of documents. I grant an order that the Defendants be granted leave to file an affirmation of Mr. Hui Kwok Hung out of time, according to the wording of the summons, within 21 days.

13.The Plaintiff also complains that the order of Master Wong was not clear on the position of the 2^nd Defendant. I do not agree. It is clear from the affirmation itself that it was filed on behalf of both Defendants.

14.On the appeal against the costs order. The order made by Master KW Wong should be an order made under O62 r9 (1). In a simple application like this, I would have adopted the same approach instead of ordering the costs to be taxed.  Although O62 r28A does apply in these circumstances, O62 r9(4)(b) allows some modifications to the assessment of the gross sum for costs. O62 r9 gives the court a wide discretion in making the assessment. In any event, the Plaintiff’s understanding on O62 r28A was misconceived. O62 r28A (2) provides that

“The amount allowed in respect of any item shall be such sum as the taxing master thinks fit not exceeding ….two-thirds of the sum….if the litigant had been represented by a solicitor.”

Nowhere in O62 r28A suggests that she could get two-third of a solicitors’ costs as of right.

15.Further I do not find it appropriate to make an order on costs on indemnity basis. I do not see that a delay by 6 days is so oppressive that the court should make such an order.

16.On the costs of the hearing of the summons on 21 February 2005, I see that the Plaintiff was not employed at the time and suffered no loss or damages for attending the hearing and preparing the affirmation dated 19 Feb 2005, I order $200 to be paid to the Plaintiff forthwith.

17.For the reasons aforementioned, the decision of Master KW Wong should not be faulted and the appeal must be dismissed.

18.On the costs of this appeal, I order that costs should follow the event. As I have dismissed the appeal, the Plaintiff should pay costs to the Defendants. I order the Plaintiff to pay $3,000 to the Defendants for this appeal forthwith.

Plaintiff, appearing in person.

Mrs. K. Newman of Messrs. Philip K.H. Wong, Kennedy Y.H. Wong & Co. for 1^st and 2^nd Defendants.