Yun Kee Kitchen Ltd v. Luk Kwan and Another

DCCJ 4904/2006 & 90/2007

(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NOS. 4904 OF 2006 & 90 OF 2007 (Consolidated)

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BETWEEN

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Before: H H Judge Lok in Chambers

Date of Hearing: 16 September 2008

Date of Decision: 16 September 2008

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D E C I S I O N

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1.This is an application by the Defendants to stay the proceedings until the determination of the appeal against my order dated 30 July 2008, refusing the Defendants to amend the Defence and Counterclaim by raising new grounds of defences based on Clauses 7(c) and 7(e) of the tenancy agreement.

2.The background leading to the appeal has already been set out in my reasons for decision handed down on 7 August 2008.  After the giving of my decision, I granted a short adjournment of the trial to allow the Defendants to seek independent advice as to whether they should continue to retain Messrs Yung, Yu & Yuen & Co. to represent them in the present proceedings.  The case then came back before me for further directions on 18 August 2008, and the trial date was then refixed to this Thursday, i.e. 18 September 2008.

3.Shortly before the commencement of the resumed trial, the Defendant made the present application to stay the proceedings pending  determination of the appeal.  I refuse the application based on the following reasons.

4.Firstly, the Defendant made a very late application to amend the Defence and Counterclaim, raising completely new grounds of defences on the first day of the trial originally fixed on 29 July 2008.  I disallowed the Defendants’ application insofar as it relates to the raising of new grounds of defences.  In the normal course of event, the trial would have proceeded immediately after my ruling, and the Defendant would then be free to appeal against my ruling after the determination of the whole case.  In other words, the trial would have been finished by now.  However, I granted a short adjournment to enable the Defendants to obtain independent legal advice.  This was an indulgence given to the Defendants.  I cannot see how the Defendant can make use of this indulgence to ask for further delay of the trial.  This will not be fair on the Plaintiff.

5.Secondly, in the hearings on 30 July 2008 and 18 August 2008, I have already indicated that the trial should resume as soon as possible.  In the latter hearing, I have already indicated that the trial would proceed even before the hearing of the appeal.  In my judgment, further delay of the trial of this case would simply defeat the object on my decision given on 30 July 2008.  As the possibility of conducting the trial before the hearing of the appeal was already within the contemplation of all the parties on 18 August 2008 and the court nevertheless proceeded to fix the trial date on 18 September 2008, it would not be right to further adjourn the trial only 2 days before the resumed hearing. 

6.Thirdly, the Defendants had exaggerated the costs wasted in case that my decision is reversed on appeal.  Assuming the Defendants succeed in the appeal, the parties only need to come back to the court to determine a very narrow issue as to whether Clauses 7(c) and 7(e) in the tenancy agreement would provide a complete defence to the Plaintiff’s claim.  This is not a fact-sensitive issue and the costs of a further trial will be limited.  Obviously, if the Defendants succeed in the appeal, there may be a fair chance that the costs of the resumed hearing on this Thursday may be wasted.  However, as the trial is scheduled to resume 2 days later, I wonder whether substantial legal costs can be saved by adjourning the trial at such a late stage.  Hence, based on these reasons, I do not think that it is fair or appropriate to further adjourn the trial of this case.  I therefore refuse the Defendants’ application.  

Mr Anthony P W Cheung, instructed by Messrs K H Yuen & David Cheung, for the Plaintiff

Mr Kenneth Wong, instructed by Messrs Yung, Yu, Yuen & Co., for the Defendant