The Hong Kong Housing Authority v. Hsin Yieh Architects & Associates Ltd and Others

CACV 85/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 85 OF 2005

(ON APPEAL FROM HCCT NO. 39 OF 2001)

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BETWEEN

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Before:  Hon Tang JA and Sakhrani J in Court

Date of Hearing:  20 December 2005

Date of Decision:  20 December 2005

Date of Reasons for Decision: 23 December 2005

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REASONS  FOR  DECISION

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Hon Tang JA (giving the reasons for decision of the Court):

1.The 4^th defendant applied for leave to appeal to the Court of Final Appeal against our judgment dated 5 October 2005 (the judgment).  Mr Chua SC has described the 5 questions set out in the Notice of Motion as questions of great general or public importance.  Leave was also sought on the “or otherwise” basis.

2.Central to these questions is the point made and rejected by the judge and us that in an application made under O. 11 r. 1(1)(c), the plaintiff must allege a cause of action against the party sought to be joined.

3.We do not regard this question (No. 3 in the Notice of Motion) as a question of great general or public importance.  In any event, the language of O. 11 r. 1(1)(c) and the authorities are so clear that in our discretion we would not give leave to appeal.

4.As for the question (No. 1) whether on the proper construction of section 52A(2) of the High Court Ordinance, Cap. 4:

“… non-parties may be joined as defendants and sued for the purposes of costs only …”

This is what we said in para. 32 of the judgment:

“32.   However, under section 52A no such order could be made except against a party to the proceedings.  The issue therefore is whether it is permissible for a person to be joined as a party so that he might be made liable for the costs of proceedings.  This is not an easy question.  However, all we need to decide is whether there is a serious question to be tried.  We believe there is.”

5.Whether an order should or could be made against the 4^th defendant must await further determination and the decision may well be fact sensitive.  Mr Chua has submitted that there are conflicting decisions on the subject at first instance and he mentioned Re Aurasound Speakers Ltd [2005] 4  HKLRD 382 and The M.V. Liberty Container [2005] 3 HKC 485.  But as Deputy Judge J Poon has explained in the former, there was no conflict between the 2 decisions.  In any event, the matter has not yet been adjudicated by this court, and may be fact sensitive.  Any appeal to the Court of Final Appeal should await a substantive decision on the issue.

6.As for the matters raised in paras. 2 (a) and (b) of the Notice of Motion, it is now complained that even if it was not necessary to make a substantive claim against the 4^th defendant, insofar as the plaintiff is making a claim for costs against the 4^th defendant, the fact that costs is so claimed and the basis for such claim should have been stated in the amended writ as required by O. 6, r. 2, RHC and O. 18, r. 7, r. 12 and r. 15, RHC.  There may be merit in this point.  However, this is a new point.  It had not been raised before the judge.  Certainly the judge did not understand that such a point had been raised and did not deal with it in his judgment.  This was not raised in the Notice of Appeal.  Nor did it figure in the written submissions to us, which ran to 19 pages.  Mr Chua said that it was mentioned by him orally in his submission.  We do not recall that at all.  We believe that he must have mentioned the point in such a way that it did not catch our attention.  We would not have been willingly to entertain the point without a suitable amendment to the Notice of Appeal, which in turn would have required leave.  As appeared from the written submission of Mr Jin, who appeared for the plaintiff, he had understood para. 2 as raising the no cause of action submission in yet another way.  We do not believe it right to give leave to raise a new point on appeal to the Court of Final Appeal.  Nor is this a point of great general public importance.  This is not a point which goes to the substantive merit of the plaintiff’s claim against the 4^th defendant.  The most we would say is that if this is a good point, by failing to make it at the appropriate time the 4^th defendant has lost the opportunity of scoring a technical victory.  Had the point been taken at the outset, and found to be valid, the plaintiff could have asked for and obtained leave to serve a further amended writ out of the jurisdiction months ago.  Thus this is at best a technical point of pleading which if taken at the right time might have resulted in a temporary technical set back to the plaintiff.  Nor should the failure to take this point result in any lasting detriment to the 4^th defendant, since if required, the court can order pleadings on the issue of costs so that the matter could be properly adjudicated upon.

7.As for para. 5 in the Notice of Motion which reads:

“(5)   Whether it is permissible and (if so) in what circumstances to join a defendant outside the jurisdiction at a late stage or at trial, when joinder and the Court's jurisdiction are disputed, such that with any appeals, the defendant does not have a fair opportunity to utilise the protection of the Rules of Court. In particular, to file pleadings, to adduce factual and expert evidence, to make and obtain discovery, and to participate at the trial.”

We have some difficulty in understanding this question.  But, in any event, such matters would require to be properly investigated at the substantive hearing and are fact-sensitive.  These are not matters which it would be convenient or right to adjudicate at the leave stage.  Nor are they matters which any court should be asked to decide in vacuo.

8.Question 4 was a consequential question and we need not deal with it separately.

9.For the above reasons, the application for leave was dismissed with costs.

Mr Jin Pao, instructed by Messrs Johnson, Stokes and Master, for the Plaintiff.

Mr Chua Guan-hock, SC, instructed by Messrs Wilkinson and Grist, for the 4^th Defendant/Applicant.

The 3^rd Defendant, absent.

Application by the plaintiff to Court of Final Appeal for security for the costs of application for leave to appeal to Court of Final Appeal granted by Court of Final Appeal. Please refer to FAMV3/2006 dated 21 February 2006