Asia Pacific Lasik Centre Ltd v. Quality Healthcare Medical Services Ltd and Another

HCMP 2244/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2244 OF 2005

(On an intended appeal from HCA No. 2347 of 2004)

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BETWEEN

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Before : Hon Yeung JA and Tang JA in Court

Date of Hearing : 17 January 2006

Date of Judgment : 17 January 2006

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J U D G M E N T

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Hon Tang JA:

1.The application for leave to appeal concerns the costs of the adjournment of the hearing of the plaintiff O. 14 and O. 18 r. 19 summonses on 21March 2005.  The adjournment was granted because the defendants had filed a summons for leave to serve a re-amended defence and counterclaim with the same return date of 21 March 2005 and because of that, the plaintiff wanted time to respond.

2.The adjournment, however, was granted with costs reserved.

3.Eventually, on 13 April 2005, the plaintiff decided to withdraw its summonses and the order for costs made by Master Hui in relation to the adjournment on 21 March 2005 was that costs should be in the cause.  The plaintiff was dissatisfied with that and appealed.

4.The appeal was heard by Deputy Judge Saunders who dismissed the appeal.  The judge said in his judgment:

“	5.	The question of the costs argument was straightforward and should have been brief.  The record shows that the hearing before the Master lasted for 1 hour and 42 minutes, of which 20 minutes was devoted to the delivery of the reasons for the orders made.  It was a hearing which ought to have taken no longer than 10 minutes, and should not have required the Master to spend so much time in giving reasons for his decision.  Again, in those circumstances, the Master cannot be faulted in ordering costs for the hearing of the argument for costs on the Withdrawal Summons to be to the defendants.
	6.	There is no basis upon which it can be said either that the decision of the Master was unreasonable or that there was any error of law.  The appeal is dismissed.”

5.We, of course, are not concerned with that set of costs.  But we are concerned with the application by the plaintiff now for leave to appeal from the order of Deputy Judge Saunders, refusing to reverse the order of the Master in relation to the costs of the adjournment of the hearing of the summons on 21 March 2005.

6.It seems to me, however, clear even on the basis of the amended defence and counterclaim in relation to which leave was granted on the 23 February 2005, that the plaintiff really could not have succeeded on their O. 14 or O. 18 r. 19 summonses.

7.That being the case, it was certainly highly arguable, that the plaintiff should have withdrawn their summonses long before the hearing on 21 March 2005, if not before 9 March 2005.  And it was also arguable that the plaintiff should be ordered to pay costs incurred after a reasonable time had elapsed after 23 February 2005.

8.That being the case, I can see no reason for interference with the order of the Master.  The appeal being in fact hopeless.  I would refuse leave to appeal.

Hon Yeung JA:

9.I agree with the judgment of Tang JA.  I would too, refuse leave to appeal.

Mr Liu Chin Yu, instructed by Messrs Ellen Au & Co., for the Plaintiff