Pico International (HK) Ltd v. Palace Dreams Ltd
|
CACV 162/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 162 OF 2008 (ON APPEAL FROM DCCJ NO. 507 OF 2007) ---------------------- BETWEEN
---------------------- Before: Hon Le Pichon and Hartmann JJA in Court Date of Hearing: 2 December 2008 Date of Judgment: 2 December 2008 Date of Handing Down Reasons for Judgment: 5 December 2008 -------------------------------------------- REASONS FOR JUDGMENT ------------------------------------------- Hon Le Pichon JA: 1.This was an appeal from a decision of HH Judge Mimmie Chan of 2 May 2008. The matter before her was whether an order made by Master CP Pang on 10 October 2007 could be amended pursuant to Order 20, rule 11 of the Rules of the District Court. 2.For reasons that will become apparent, in the event, the defendant did not oppose the appeal. Accordingly, the appeal was allowed. The only matter left was the question of costs. The parties were unable to reach agreement and after hearing submissions, the two directors of the defendant were awarded the costs below and of the appeal. Background 3.The plaintiff obtained a judgment in the sum of $116,000 against the defendant on the latter’s non-compliance with an “unless order”. It sought unsuccessfully to enforce the order. It made an application and obtained an order from Master Pang which read:
4.Regrettably, the order as drawn was in total disarray: it was neither fish nor fowl in that it was an amalgam of the provisions of Order 49B, rule 1A(2) and Order 48, rule 1(1). Without mincing words, it was “gobbledygook”. 5.Understandably, the defendant opposed the plaintiff’s application to amend the order on the basis that the reference to Order 49B and other mistakes such as references to Mr Loo and Ms Yung being examined as to “his/her assets, his/her liabilities” etc were purely mechanical errors that could be corrected under the slip rule. The crucial matter was to ascertain Master Pang’s intention in making the order. 6.At some point prior to the hearing before the judge below (if not earlier), a copy of the draft order submitted by the plaintiff and amended in manuscript by the judicial clerk was supplied to the defendant. In substance, the order was in the terms of the draft submitted by the plaintiff for approval. Although there had originally been manuscript amendments that affected the substance of the draft submitted, those amendments were deleted, thus leaving intact the substance of the original draft. 7.On 4 March 2008, Master Lee dismissed the plaintiff’s application to amend and, on the application of the two directors named in the order, set aside that order. On 2 May 2008, the judge dismissed the plaintiff’s appeal. The appeal 8.At the commencement of the appeal hearing, I informed the parties that the court file (which I had the opportunity of the perusing) revealed the following:
Copies of the Kwan affirmation showing the relevant endorsements were supplied to the parties at the appeal hearing. 9.Paragraph 13 of the Kwan affirmation referred to in the master’s order was not a self-contained or stand-alone paragraph. It read:
The “said questions” were those set out in paragraph 11 with which paragraph 13 had to be read. 10.It appeared to the court that the endorsement showed, objectively and conclusively, the master’s clear intention. 11.The court then rose for a short adjournment to enable the parties to consider the endorsements and to review their respective positions. When the hearing was resumed, Mr Lam (having taken instructions from the defendant) quite sensibly took the view that he would accede to, and no longer oppose, the appeal. Regrettably, the parties were unable to reach any agreement on costs. 12.Mr Li who appeared to the plaintiff submitted that the fairest order would be an order that there be no order as to costs for the appeal and below. He submitted that the defendant had unreasonably refused the plaintiff’s offer made on 2 November 2007 to pay the defendant’s costs up to that point if it would enter into a consent summons to resolve the matter by accepting the amendments. It was also said that the defendant could have conducted a search of the court file which would have revealed the endorsements. 13.While it is unusual to order costs against a ‘successful’ party, the circumstances of this case are highly unusual. In ascertaining the master’s intention, his endorsement on the Kwan affirmation was decisive. That was unknown to the parties until the hearing today. It lies ill in the mouth of the plaintiff to suggest that the defendant could have conducted a search of the court file when it had not done so itself. 14.The whole problem has arisen as a result of carelessness on the part of the plaintiff’s solicitors. The draft order submitted for approval was a piece of ‘sheer nonsense’ which, unfortunately, eluded the judicial clerk and the master. Having been informed by the judicial clerk that the master had made an order in terms of paragraph 13 of the Kwan affirmation, it was incumbent on the plaintiff’s solicitors to submit a proper draft order for approval. Had they done so, they would have realised the mistaken reference to Order 49B (instead of Order 48) in paragraph 13 of the Kwan affirmation. Instead, in drawing up the draft order, they compounded the error and added further confusion by using language taken verbatim from Order 49B. 15.I do not consider that the defendant acted unreasonably in refusing the offer made on 2 November 2007. In January 2008, well before the hearing before Master Lee, the defendant offered to enter into a consent summons with no order as to costs up to that point in time on the basis that the amendment application be withdrawn, which acknowledging that the plaintiff would be entitled to apply for a fresh examination order. In my view, the plaintiff’s solicitors’ response was unnecessarily intemperate. 16.There is no getting away from the fact that the plaintiff’s solicitors were plainly responsible for the errors that have given rise to the present appeal. In all the circumstances, the fair and just order is the costs here and below be borne by the plaintiff. Hon Hartmann JA: 17.I agree.
Mr C Y Li, instructed by Messrs Ip Kwan & Co., for the Plaintiff/Appellant Mr Paul Lam, instructed by Messrs Alfred Lam Keung & Ko, for MrLoo Fong Shum and MissYung Yeung Ngai Joko, the Directors of the Defendant/Respondent |
Other judgments that cite this case
Further hearings and rulings under CACV 162/2008