George Yc Mok & Co (A Firm) v. Trade Advisers Co Ltd

DCCJ18479/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 18479 OF 2001

BETWEEN

Coram: H H Judge Lok in Chambers (Open to the public)

Date of Hearing: 23 July 2008

Date of Decision: 23 July 2008

D E C I S I O N

1.This is an application by the Defendant to extend the time for the application for leave to appeal against my order made on 21 April 2008 and for the leave to appeal itself.

2.The background of this case has been set out in my decision on 21 April 2008 and I do not want to repeat the same here.  The order was made on 21 April 2008 and was sealed later on 2 May 2008.  The time for the application for leave to appeal started to run from the latter date.

3.The Defendant seeks to justify the delay on 2 grounds.  Firstly, the Defendant complains that the Plaintiff had not served the order on the Defendant and so the Defendant was only aware of the sealed order on 4 June 2008.  However, no affidavit evidence has been produced to substantiate such allegation and, insofar as this court is concerned, this is only a bare allegation made by Miss Mak, solicitor for the Defendant, in the hearing.  Secondly, the Defendant has yet received the written reasons for decision by the court and that explains the delay in the making of the present application.

4.It is unfortunate that the court, due to administrative oversight, had not engaged DARTS, i.e. the transcript preparation division, to prepare the written reasons of decision.  However, the Defendant was aware of the reasons as the same had been pronounced orally in court during the hearing.  In other words, the Defendant was aware of the order and the reasons on 21 April 2008, and yet it had done nothing in respect of the appeal until 10 July 2008.

5.This is indeed a long and bitter litigation between the parties.  The case was originally fixed for trial before me on 22 October 2007.  However, as the Defendant sought to add new grounds of defence, the trial was adjourned, and in the hearing on 21 April 2008, the new trial date was fixed on 18 September 2008 with 5 days reserved.

6.As the Defendant was aware of the reasons given by the court for the decision and that the new trial date was fixed in September, there is, in my view, no reason why the Defendant should have delayed in the making of the application for leave to appeal.  If the Defendant is allowed to pursue the appeal at this stage, it is likely that the trial date will have to be further postponed which is highly undesirable.

7.Even assuming what Miss Mak told the court were indeed the truth and the Defendant was only aware of the perfected order on 4 June 2008, it did nothing in respect of the appeal until 10 July 2008.  Further, the Defendant could have written to the court asking for a copy of the written reasons, and yet it had not done so in the present case.  Based on the aforesaid, I do not see fit to extend the time for the making of the application for leave to appeal.

8.On the basis that I am wrong in not extending the time, I will still refuse the application for leave to appeal based on the merits of the application.

9.In substance, the Defendant is only repeating the same arguments advanced by the Defendant’s counsel at the hearing.  In my judgment, there is simply no distinction between the challenge to the Plaintiff’s bills of costs in the taxation proceedings on the one hand, and that the Plaintiff was not acting bona fide in the taxation proceedings on the other.  In this regard, I do not want to repeat my reasons given in the decision on 21 April 2008.  HH Judge Chan in 2003 had disallowed the Defendant to raise the same attack, and in 2005, Deputy High Court Judge Muttrie refused the Defendant to challenge the Plaintiff’s bills of costs in the solicitor-and-own-client taxation.  In such circumstances, it is certainly an abuse of process to make the same allegation again.

10.The Defendant complains that it did not appear in the taxation proceedings and so it did not have the opportunity to challenge the Plaintiff’s bills at that time.  As I have already set out in my reasons, HH Judge Chan and Deputy High Court Judge Muttrie had held that the Defendant was bound by the result of the taxation proceedings and so it is not open to this court to revisit the same issue again.

11.Indeed, in response to the complaint by the Defendant about the Plaintiff’s bills, the Law Society had on 4 September 2001 written to the Defendant inviting it to apply for solicitor-and-own-client taxation.  The same invitation was made by the Plaintiff in writing on 12 October 2001 and 14 November 2001 respectively, yet the Defendant had done nothing to challenge the Plaintiff’s bills by that time.

12.In my judgment, these repeated attempts to raise the same issue are clearly abuse of the process of the court with a view to delay the proceedings.  I see no prospect in the success of the appeal and so, if necessary, I also dismiss the Plaintiff’s application for leave based on the merits.  The Defendant’s application is therefore dismissed. 

Mr Tony Ko, instructed by Messrs George Y.C. Mok & Co., for the Plaintiff

Miss Claire Mak of Messrs Wong, Hui & Co., for the Defendant