Prosperous Nursing Centre Ltd v. Mak Siu Chun and Another

CACV 159/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 159 OF 2005

(ON APPEAL FROM HCA NO. 3810 OF 2002)

BETWEEN

AND BETWEEN

Before : Hon Cheung JA, Yuen JA and Waung J in Court

Date of Hearing : 6 January 2006

Date of Judgment :   6 January 2006

______________________

J U D G M E N T

______________________

Hon Cheung JA (giving judgment of the court) : 

The appeal

1.This is an appeal against a decision of Deputy High Court Judge Barnabus Fung.  The judge ordered :

1.  leave be granted to the 1^st and 2^nd defendants (by original action) [i.e. Cheung Yuk Ying (‘Madam  Cheung’) and Yek Tak International Holdings Ltd. (‘Yek Tak’)] to add two more defendants, Mr. Wong and Mrs. Wong, the son and daughter-in-law of Madam  Mak Siu Chun in the counterclaim [Mak Siu Chun (‘Madam Mak’) is the 1^st defendant in the counterclaim];

2.  leave be granted to Madam Cheung and Yek Tak to adjourn sine die the original action and the counterclaim herein, with liberty to any party of the original action and the counterclaim to restore;

3.  trial be declared de novo for the original action and the counterclaim herein;

4.  costs of and occasioned by the amendment, all costs up to today and all costs thrown away (if not included in the costs up to today) be paid forthwith by Madam  Cheung and Yek Tak to the plaintiff (by original action) [i.e. Prosperous Nursing Centre Ltd (‘Prosperous’)].

The order was made on the fifth day of a trial.

The agreed terms

2.The parties had reached terms on the appeal which were approved and they were as follows :

1)  Madam Cheung’s appeal against the costs order made against her by the judge on 8^th April 2005 be allowed;

2)  The said costs order against Madam Cheung be set aside;

3)  There be no order as to costs of this appeal between Madam Cheung on the one part and Prosperous Nursing Centre Limited and Madam Mak on the other part and also between Madam Cheung on the one part and Yek Tak on the other part.

4)  All the Orders made by the judge on 8^th April 2005 be set aside.

5)  The trial of these proceedings be remitted to continue before the judge.

6)  Yek Tak International Holdings Ltd do forthwith pay Prosperous Nursing Centre Limited and Madam Mak’s costs of, thrown away and occasioned by :

a)  the application for joinder and amendment before the Deputy Judge Fung, including the costs of the application for security for costs,

b)  the adjournment on 8^th April 2005,

c)  this appeal, and

d)  the provision of a draft Amended Defence and Counterclaim.

The two grounds

3.We would have allowed the appeal in any event.  Mr. Chain, counsel for the Madam Cheung and Yek Tak (who did not appear in the court below) made two points on his appeal :

1.  Madam Cheung should not be ordered to bear costs because she had not applied to join the additional parties.

2.  In any event, Yek Tak will abandon the addition of new parties hence the orders imposed by the judge should be rescinded.

The position of Madam Cheung

4.Madam Cheung and Yek Tak were represented by the same counsel at the court below.  It was said that he did not make it clear when he made the application that the joinder was sought by Yek Tak only.

5.While this may be so, the original pleading showed that it was only Yek Tak who had lodged a counterclaim in the proceedings.  The addition of parties would only be relevant to Yek Tak who has lodged the counterclaim.  This is further confirmed by a draft amended Defence and Counterclaim that was provided after the order was made.  Since the joinder of new parties would only be relevant to Yek Tak, the costs order should only be visited upon Yek Tak and not Madam Cheung.  We will allow Madam Cheung’s appeal.

6.We do not consider it is necessary for Madam Cheung to obtain leave to appeal against the costs order because the decision was one that goes to jurisdiction and not discretion.  However, we would be prepared to grant leave if it is indeed necessary to do so. 

The position of Yek Tak

7.Since Yek Tak no longer wishes to add the new parties, the need to abort the trial and start afresh is no longer necessary. 

Re-listing of the case

8.We accordingly allowed Yek Tak’s appeal and set aside all the four orders both against Madam Cheung and Yek Tak.  The case should be relisted for hearing as soon as possible.

Properly formulated amendment

9.We would like to observe that when counsel applied to join the new parties, he did not even have a properly formulated claim against them.  Where a trial had proceeded for four days, the court should not even begin to hear such an application unless a draft amended pleading was before it.  It is regrettable that this had not been done in the present case which resulted in a total waste of costs and time in the prosecution of this case.

Mr. Kenny C P Lin and Mr. Paul Yip, instructed by Messrs Y.C. Lee, Pang & Kwok for the Plaintiff in Original Action and the 1^st and 2^nd Defendants in Counterclaim

Mr. Benjamin Chain, instructed by Messrs Alvin Cheng & Rosaline Choy for the 1^st and 2^nd Defendants in Original Action and the Plaintiff in Counterclaim