Onway Engineering Ltd v. Shun Wing Construction & Engineering Co Ltd

HCA 88/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 88 OF 2008

----------------------

BETWEEN

----------------------

Before: Deputy High Court Judge Carlson in Chambers

Date of Ruling: 3 December 2008

-----------------------

R U L I N G

---------------------

Introduction

1.On 18 November, I struck out the action on the basis that the claim was out of time and was not amenable to an extension under section 23(3) Limitation Ordinance.  I made an order nisi that the Defendant should have its costs of the summons to have the action struck out and of the action itself.

2.The Defendant has applied for a variation of that order to include a certificate for two counsel, it having instructed Mr Russell Coleman SC, to lead Miss Cruden.

3.There is also an application to formally dismiss the Plaintiff’s summons to amend its statement of claim with an order for costs also to include a certificate for two counsel.

4.The Plaintiff has replied by letter to say that it is appealing my judgment and that the costs order should remain as it is.

My Decision

5.The fact that there is going to be an appeal is neither here nor there.  I must complete the process of my judgment as the judge at first instance.

6.Firstly, I propose to dismiss the Plaintiff’s summons to amend its pleading.  Once I held that the claim had not been acknowledged and that the Plaintiff could therefore not claim the benefit of section 23(3), the action would have to be struck out and an amendment of the Statement of Claim would be pointless.  I will therefore strike out the amendment summons with costs.

7.As to whether the Defendant should have a certificate for two counsel, I am satisfied that the summons was of great importance in terms of the outcome of the action and the argument of sufficient difficulty and the case itself of sufficient complexity to warrant the instruction of Senior Counsel.  I propose therefore to certify the matter as fit for two counsel.  As to the amendment summons, that would not normally have merited the instruction of Senior and Junior Counsel.  I will therefore refuse a certificate on that summons, which in any event hardly figured at the hearing.

Alan Ng and Yvonne Fong, instructed by Messrs Rowdget W Yong & Co., for the Plaintiff

Russell Coleman SC and Liza Jane Cruden, instructed by Messrs Wong & Fok, for the Defendant