何應虹 v. Hang Fung Electric Wire Factory Ltd
|
DCCJ3595/2005 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 3595 OF 2005 ----------------------
---------------------- Coram: H H District Judge Marlene Ng in Chambers (Open to the Public) Date of Hearing: 17th March, 2009 Date of Handing Down Decision: 24th March, 2009 ---------------------- DECISION ---------------------- I. Introduction 1.There is substantial common ground between the parties to this action :
II. Plaintiff’s claim 2.The Plaintiff claimed that on 10th December 2001 with the consent of Ying Tat she lent the Sum to the Defendant to reduce the outstanding banking facilities due and owing by the Defendant to BOC and secured by the BOC Mortgage or “to settle the loan of the Defendant in order for the [BOC Mortgage] to be discharged”. The Plaintiff further claimed that the Defendant failed to repay the loan despite repeated requests/demands, so she commenced the present proceedings for recovery of the same with interest. The Defendant’s defence amounted to a denial of the Plaintiff’s claim. III. Defendant’s counterclaim 3.The Defendant claimed that the Plaintiff as its director and secretary wrongfully used its funds to settle the rates, management fees and mortgage payments of the Nanking Property, and “the decoration fee of the Plaintiff’s property at Wing Hing Industrial Building” in a total sum of HK$127,007.20, and demanded repayment of such sum with interest. On the other hand, the Plaintiff claimed that all monies used or obtained as bonus had the consent of the Defendant and all its directors including Ying Tat, and “Wing Hing Industrial Building had been used for taking rest by staffs of the Defendant and was later used by [Ying Tat] as his own accommodation for more than 2 years”. IV. Summary judgment application 4.By an Amended Summons dated 3rd March 2009, the Plaintiff applied for summary judgment against the Defendant for the amount claimed in the Statement of Claim with interest. The Plaintiff filed 2 affirmations on 17th November 2008 and 2nd January 2009 (“Plaintiff 1st and 2nd Affirmations”) in support of the application whilst the Defendant filed the Chik Affirmation in opposition. V. Affirmation evidence on the Plaintiff’s claim 5.The Plaintiff claimed that in December 2001 Ying Tat told her the Defendant faced serious financial difficulties and needed to sell the Property to improve cash flow. When BOC was told of the same, BOC required the Defendant to reduce the BOC Overdraft (which was about HK$300,000.00 at that time) as much as possible. So Ying Tat on behalf of the Defendant “asked [the Plaintiff] to lend money to the Defendant with a view to discharge the [BOC Mortgage] so that the Defendant could sell the Property”. Indeed, when the Cheque was deposited in the BOC Account, the Defendant had to fax the BOC Statement to BOC’s Mr 單漢毅at the 17/F, Nan Fung Centre office (“BOC Fax”). The BOC Fax appeared to be signed by Ying Wing with the Defendant’s company chop affixed thereon. 6.The Plaintiff exhibited 2 customer advices dated 10th December 2001 in relation to the transfer/deposit of the Sum/Cheque with the following handwritten notations : “東主戶口借出 from Winnie 東主存入 由本人戶口，先存入公司戶口，再開公司票轉入中銀找OD數，因要賣物業。” (BOComm) and “東主戶口借出由交通，from Winnie存入東主往來 賣公司物業前先付清OD款才能轉賣。” (BOC). 7.The Plaintiff claimed it was Ying Wing who wrote the Cheque Notation and the name of the payee (ie the Defendant) on the Cheque. She did not know why Ying Wing wrote the Cheque Notation, but confirmed the Defendant did not purchase any copper wire. 8.On 28th December 2001, BOC wrote to the Defendant’s then solicitors, Messrs Gallant Y T Ho & Co, requesting them to prepare a Discharge of the BOC Mortgage and to collect on behalf of BOC on or before 3rd January 2002 the total sum of HK$1,906,000.00 (subject to confirmation) with details as follows (“BOC Letter”) :
9.The Plaintiff claimed that after the sale of the Property she had on many occasions asked the Defendant and Ying Tat to repay the loan of the Sum, but the Defendant refused/failed to do so. According to the Plaintiff, LLS in 2004 issued an audit confirmation to her (“LSS Confirmation”) as follows : “Lam, Lee & So C.P.A. Company Limited HO YING HUNG WINNIE THIS IS NOT A REQUEST FOR PAYMENT Dear Sir(s), Re: HANG FUNG ELECTRIC WIRE FACTORY LIMITED In the course of our regular examination of the accounts of the above company, we find that the balance of your account is as follows:
If the above balance agrees with your records please confirm by signing at the foot of this page and returning this letter to us in the sealed envelope. We appreciate that you may have settled the above account after the date mentioned above, but we would still appreciate your confirmation that the balance is correct. If you do not agree the above balance we should be grateful if you would write to us directly giving details of the difference.
10.On the other hand, Madam Chik denied the Plaintiff lent the Sum to the Defendant to repay banking facilities secured by the BOC Mortgage. She claimed that the Plaintiff as director of the Defendant signed the Cheque and wrote the Cheque Notation, and that the Cheque Notation on the certified true copy of the Cheque obtained from the records of BOComm as at 10th December 2001 showed the Plaintiff’s handwritten notations on the aforesaid customer advices (see paragraph 6 above) were untrue. 11.Madam Chik said that with a surplus of about HK$640,000.00 upon deduction of the BOC Mortgage Loan repayment of HK$1,703,088.09 from the Sale Price, the Defendant did not need to borrow any loan to redeem the BOC Mortgage. As regards the LSS Confirmation, Madam Chik claimed that upon careful search of the Defendant’s “帳目” there was no such document as at 31st March 2004 or any time thereafter, so she believed that the Plaintiff as director of the Defendant at the material time obtained such document either by “做假賬” (ie false accounting) and/or by misrepresentation to LSS for which the Defendant reported to the Tsuen Wan Police Station. VI. Affirmation evidence in relation to the Defendant’s counterclaim 12.Madam Chik claimed that the Plaintiff as director of the Defendant took money from the Defendant to deposit in her personal bank account and/or to pay for her own personal expenses, which according to the Defendant’s preliminary calculations were about HK$229,736.99. In support, she exhibited 26 cheques signed by the Plaintiff on behalf of the Defendant dated between 17th February 1998 and 31st January 2002 and payable variously to BEA, the Government, the incorporated owners of Nanking Building, 南華信貸財務有限公司, the Plaintiff, cash, the Plaintiff and Ying Wing, and Cheung Wing Pang Pan (“Counterclaim Cheques”). 13.On the other hand, the Plaintiff claimed that when the Nanking Property was purchased in 1992, it was agreed by the then directors of the Defendant that it be held in the joint names of the Plaintiff and Ying Wing and that all outgoings of such property would be borne by the Defendant. Further, most of payments by the Counterclaim Cheques were for the Nanking Property (eg to pay mortgage instalment payments, rates, repair costs and management fees). Some of the Counterclaim Cheques were paid to Ying Wing “either to cover his debt or to pay him as bonus” (eg to pay for his expenses or to his creditor), and one Counterclaim Cheque was payable to a supplier in the PRC. The Plaintiff could not remember the precise purpose for certain Counterclaim Cheques but believed they were related to the Nanking Property. The Plaintiff added that Madam Chik as Ying Tat’s wife should have known of the Nanking Property’s outgoings, and should have been fully aware that the Counterclaim Cheques were used for the Nanking Property and for Ying Wing. VII. Legal principles 14.A plaintiff may invoke the procedure under Order 14 of the Rules of the District Court (“RDC”) where there is no valid defence to his claim or otherwise a triable issue. The rationale is set out in Hong Kong Civil Procedure 2009 Vol.1, para.14/4/1 at p.190 as follows :
15.In Ng Shou Chun v Hung Chun San [1994] 1 HKC 155, Godfrey J noted it was not appropriate to embark on a mini-trial of the action on affidavit evidence. The court should ask itself the question whether what the defendant says is credible or believable. If so, he must have leave to defend; if not, the plaintiff is entitled to summary judgment. 16.Hong Kong Civil Procedure 2009 Vol.1 para.14/4/9 at pp.192-194 went on to say that :
17.In Hong Kong Civil Procedure 2009 Vol.1 para.14/4/16 at p.199, it is said that “[a] condition of paying some or all of the money or damages claimed into court, or giving security, is imposed where there is good ground in the evidence for believing that the defence set up is a sham defence or the master “is prepared very nearly to give judgment to the plaintiff” …… leave to defend conditional on the full amount being paid into court may be ordered where the defence is “shadowy” …… or there is little or no substance in it or the case is almost one in which summary judgment should be ordered. On the other hand, where the defence can be described as more than shadowy but less than probable, leave to defend should be given ……” VIII. Discussion 18.At the commencement of the hearing, Mr Lam, counsel for the Defendant, abandoned the argument raised in his written skeleton submissions that the Plaintiff failed to give notice of intention to proceed after a year’s delay. 19.Mr Lam next argued that the summary judgment application made more than three years after issuance of the Writ of Summons was late. He suggested that it was good practice to file affidavit evidence giving reasons for the delay, and that delay in bringing such application might of itself be sufficient reason for refusing judgment. 20.However, there is no express provision in the rules as to the time when a summary judgment application must be made, and failure to give reasons for the delay would not necessarily prevent Order 14 judgment (see Hong Kong Civil Procedure 2009 Vol.1 para.14/2/2 at p.187). Mr Lam did not cite any irreparable prejudice to the Defendant because of any delay, and I see no merit in this argument. Although Mr Lam submitted that the delay would also lead the court to examine the Plaintiff’s case with more circumspection, I bear in mind that the background facts (see paragraph 1 above) are largely uncontested. 21.In this case, there is no dispute that on 10th December 2001 the Plaintiff paid the Sum to the Defendant, and such Sum was ultimately deposited in the BOC Account. There is also no evidence that the Defendant ever repaid such Sum to the Plaintiff. Thus the sole issue is whether such payment was a loan by the Plaintiff to the Defendant. If the Plaintiff establishes a prima facie case on such issue, it is for the Defendant to raise triable issues or arguable defences to the effect that such payment was not a loan. 22.Mr Wong, counsel for the Plaintiff, submitted that the purpose for which the Plaintiff granted the loan of the Sum to the Defendant was irrelevant because of clear evidence of the existence of the loan. But Mr Lam argued that it was for the Plaintiff to make out her pleaded case that the alleged loan to the Defendant was for the purpose described in paragraphs 2 and 5 above. 23.I note the following undisputed facts : (a) the Sum was transferred from the bank account in the names of the Plaintiff and Ying Wing to the BOComm Account and then by the Cheque to the BOC Account, (b) upon deposit of the Cheque in the BOC Account, the Sum thereby reduced the BOC Overdraft from HK$360,740.29 to HK$60,740.29, and (c) there was no withdrawal of the Sum or a combination of sums constituting the Sum from the BOC Account between 10th December 2001 and 29th December 2001 (Saturday). 24.Since the sale of the Property was completed on 31st December 2001 (Monday), Mr Wong submitted that there could be no avoiding the conclusion that the Sum was in fact used for reducing the BOC Overdraft, which conclusion sat well with the Plaintiff’s explanation that the Defendant requested a loan of the Sum specifically for such purpose. I am of the view that the Plaintiff has established a prima facie case of her claim. 25.Mr Lam cast doubt on such contention by reference to the Cheque Notation on the reverse of the Cheque, which was a contemporaneous document dated 10th December 2001 and deposited in the BOC Account on the same day. Mr Lam submitted that with the Cheque Notation suggesting that the Sum or the Cheque was shareholder’s account for purchase of copper wire and further with factual dispute over whether it was the Plaintiff or Ying Tat who wrote the Cheque Notation, there were triable issues that went to the credibility of the Plaintiff’s assertions. 26.Before dealing with the above argument, I would like to dispose of two preliminary points in relation to the Cheque Notation in Mr Lam’s written skeleton submissions. 27.First, I disagree the Plaintiff changed her evidence to say that Ying Wing wrote the Cheque Notation on the reverse of the Cheque. The reality is although the Plaintiff 1st Affirmation stated that the Plaintiff transferred the Sum from her bank account (erroneously stated to be the BOComm Account) to the BOC Account, she exhibited to such affirmation customer advices which of themselves and by the handwritten notations thereon clearly showed that the Sum was transferred from the bank account with BOComm in the names of the Plaintiff and Ying Wing to the BOComm Account and from the BOComm Account by cheque to the BOC Account. There has been no hiding of the routing of the Sum through the various accounts, which the Defendant does not dispute at all and which the Plaintiff has clarified in the Plaintiff 2nd Affirmation. In any event, the matter of the Cheque Notation was never canvassed in the Plaintiff’s pleadings or in the Plaintiff 1st Affirmation that may lend weight to any suggestion of change of evidence. Further, the Plaintiff 2nd Affirmation did not resile from the Plaintiff’s earlier evidence in respect of the existence and purpose of the loan of the Sum to the Defendant set out in the Plaintiff 1st Affirmation. 28.Secondly, Mr Lam submitted it was incredible that the Plaintiff who signed the Cheque would be unaware of the Cheque Notation. There is no dispute it was the Plaintiff who signed the Cheque. But the Plaintiff’s case is that Ying Wing wrote the name of the payee and the Cheque Notation on the Cheque because she recognised Ying Wing’s handwriting. Unless there is evidence to suggest that the Cheque Notation was already made when the Plaintiff signed the Cheque or the Plaintiff had custody of the Cheque from the time she signed it until it was deposited in the BOC Account or the Plaintiff was the one who deposited the Cheque into the BOC Account or alternatively evidence to explain why Ying Wing would not have access to the Cheque (but there was no such evidence), the fact that the Plaintiff signed the Cheque does not of itself render it incredible that she was unaware of the Cheque Notation. 29.On the other hand, Madam Chik only became a shareholder and director of the Defendant in 2002 and 2004 respectively. There is no evidence that she was involved in the Defendant’s affairs in 2001. But in the Chik Affirmation Madam Chik did not state the source of information or belief for her assertion that it was the Plaintiff who wrote the Cheque Notation on or before 10th December 2001. 30.I bear in mind that Order 14 rule 4(1) and (2) of the RDC provides as follows :
Order 14 rule 2(2) of the RDC provides as follows :
Hong Kong Civil Procedure 2009 Vol.1 para.14/4/4 at p.191 also states that “[matter] of hearsay is admissible in the defendant’s affidavit …… provided that the sources and grounds of information or belief are disclosed”. In my view, Madam Chik’s assertion that it was the Plaintiff who wrote the Cheque Notation on or before 10th December 2001 is therefore nothing more than a bare assertion. 31.Coming back to Mr Lam’s arguments in paragraph 25 above, I note the sale of the Property was completed and the discharge of the BOC Mortgage was made on 31st December 2001 (Monday). In light of the undisputed facts in paragraph 23(a)-(c) above, it is clear that whatever might have been the original purpose for transferring the Sum to the Defendant and irrespective of the Cheque Notation, the Sum was actually used to reduce the BOC Overdraft and not for any other purpose. 32.Although Mr Wong submitted that “the [Sum] was a sum used to buy copper wire and not as allegedly used to pay off the mortgage loan of the Property”, neither the Defence and Counterclaim nor the Chik Affirmation expressly so aver/assert. Indeed, apart from a denial that the Sum deposited in the BOC Account was a loan from the Plaintiff to reduce the BOC Overdraft, the Defendant’s pleadings and affirmation carefully shy away from directly addressing how and for what purpose the Sum was used. 33.Further, even though Madam Chik claimed to have carefully searched the Defendant’s accounts, the Defendant did not disclose any extracts from its accounts, journals or ledgers to show how the Sum deposited in the BOC Account was disbursed or whether copper wire was purchased over the relevant period. I also take note of Mr Lam’s submissions that the debit and credit entries for the period between 10th and 29th December 2001 in the BOC Statement that reflected an increase of the BOC Overdraft from the reduced sum of HK$60,740.29 on 10th December 2001 to HK$147,213.11 on 29th December 2001 were normal business transactions of the Defendant as an ongoing concern, but there is still no suggestion that any of such entries was for purchase of copper wire. 34.Still further, there is no suggestion that Ying Tat (ie Madam Chik’s husband and a director of the Defendant in 2001 and now) was unavailable to respond to the Plaintiff’s assertions, yet the Chik Affirmation did not even allude to any attempt by Madam Chik (who only became a shareholder and director of the Defendant in 2002 and 2004 respectively) to make suitable enquiries with Ying Tat. 35.It is trite that a bare denial is insufficient to resist a summay judgment application and the defendant’s affidavit must condescend upon the particulars, and specifically deal with the plaintiff’s claim and affidavit (see Hong Kong Civil Procedure 2009 Vol.1 para.14/4/1 at p.190). 36.In my view, although the deposit of the Sum in the BOC Account does not of itself prove it was a loan for the purpose of reducing the BOC Overdraft (since any sum deposited in a bank account with overdraft facilities will automatically reduce the existing overdraft), the matters discussed above lean strongly in favour of the Plaintiff’s case. Whilst I acknowledge the matter of the Cheque Notation being a notation on a contemporaneous document raises some factual disputes which cannot be resolved on affidavit, in the overall context of the above discussion such defence arguments are at best shadowy. 37.Notwithstanding the aforesaid, Mr Lam again cast doubt on the Plaintiff’s case by saying it was unnecessary for the Defendant to borrow the Sum to redeem the BOC Mortgage. In this respect, there is no dispute that the Sale Price was sufficient to cover both the outstanding BOC Mortgage Loan and the BOC Overdraft even if the latter had not been reduced by the deposit of the Sum in the BOC Account. Mr Lam submitted that this showed the Plaintiff’s allegation was incredible. 38.The starting point is that the Property was mortgaged to BOC, so quite apart from any consideration as to whether the anticipated sale proceeds would be sufficient to cover the outstanding sums secured by the BOC Mortgage, the Defendant necessarily required BOC’s consent to sell the Property. 39.The Plaintiff claimed that when the Defendant told BOC it intended to sell the Property, BOC asked the Defendant to reduce the BOC Overdraft as much as possible, so Ying Tat on behalf of the Defendant (which was then in financial difficulty) asked her for a loan of the Sum to reduce the BOC Overdraft in order to sell the Property. 40.The Plaintiff’s case is supported by objective facts. First, as discussed above, the BOC Overdraft was actually reduced by the Sum prior to completion of the sale of the Property and/or the redemption of the BOC Mortgage. Secondly, when the BOC Letter required Messrs Gallant Y T Ho & Co to collect outstanding sums in respect of the BOC Overdraft and the BOC Mortgage Loan on or before 3rd January 2002 to discharge the BOC Mortgage, it specified that the overdraft limit for the BOC Overdraft was HK$200,000.00. Thirdly, the Sum reduced the BOC Overdraft to a level well within such overdraft limit. Fourthly, even though the BOC Overdraft increased to HK$147,213.11 by 29th December 2001 (ie just before the discharge of the BOC Mortgage) it was still well within such overdraft limit. In my view, the above matters sit well with the Plaintiff’s case that when the Defendant approached BOC with its intention to sell the Property, BOC gave consent on the basis that the Defendant should reduce the BOC Overdraft as much as possible. I am not persuaded the mere fact that the Sale Price exceeds the BOC Overdraft and the BOC Mortgage Loan renders the Plaintiff’s contentions incredulous. In my view, the Defendant could have clarified the matter with Ying Tat (who was and is a director of the Defendant then and now) or with BOC, but the Chik Affirmation did not mention any such effort. 41.During the hearing, I queried why the Defendant was required to send the BOC Fax to BOC obviously some time after 29th December 2008. Mr Wong reminded me that although the Receipt on Discharge of the BOC Mortgage was dated 31st December 2008, the BOC Letter showed that monies for redemption of the BOC Mortgage would be collected by the solicitors on or before 3rd January 2002 and hence the precise amount of the BOC Overdraft and interest thereon to be collected was “subject to confirmation”. Indeed, the Annual Statement of Instalment Loan Account dated 28th September 2005 showed that the BOC Mortgage Loan was repaid on 2nd January 2002. 42.Upon careful consideration, given that (a) the BOC Overdraft and BOC Mortgage Loan were handled by BOC’s Clague Garden Branch (see BOC Statement and Annual Statement of Instalment Loan Account dated 28th September 2005), (b) the BOC Overdraft had an overdraft limit of HK$200,000.00, (c) the monies for redemption of the BOC Mortgage was collected only in January 2002, and (d) as at 28th December 2001 the final figure for settling the BOC Overdraft was still outstanding, there is nothing untoward for BOC staff at 17/F Nan Fung Centre dealing with discharge of the BOC Mortgage to ask the Defendant to fax through the BOC Statement which showed the deposit of the Sum and status of the BOC Overdraft thereafter. 43.Next, the Defendant disputed the LSS Confirmation. Mr Wong’s first attack was the Plaintiff’s failure to plead the same. However, the LSS Confirmation is not a material fact that constitutes the Plaintiff’s cause of action on the loan of the Sum. Rather, the Plaintiff relies on the LSS Confirmation as supporting evidence for the existence of the loan that has been outstanding for some time. In my view, it is not necessary to plead evidence. 44.Although the Plaintiff has not explained why she signed the LSS Confirmation (being an audit confirmation addressed to her as creditor of the Defendant) as director on behalf of the Defendant (ie the debtor), it is not a complaint that featured in Mr Lam’s submissions. Instead, Mr Lam in his written skeleton submissions complained that the Plaintiff did not produce any audit confirmation “signed by an independent director” for the period ending 31st March 2002. I do not understand why an “independent director” of the debtor company should sign an audit confirmation addressed to a individual creditor. 45.In any event, it is for the Defendant to raise triable issues or arguable defences, but it only made bare assertions of false accounting and/or misrepresentation. Although such assertions are serious allegations, there is no evidence that the Defendant made enquires with LSS as to whether LSS ever dispatched the LSS Confirmation or whether such confirmation signed by the Plaintiff was returned to LSS. Madam Chik’s search through the Defendant’s accounts for the LSS Confirmation is also inexplicable when the LSS Confirmation on its face (a) suggests it was issued by LSS and (b) requests the Plaintiff to return it to LSS after signing thereon. The Defendant also did not produce any extracts of entries over the relevant period from its accounts, journals or ledgers which should expose the existence or otherwise of a loan of the Sum from the Plaintiff and/or the description for the deposit of the Sum in the BOC Account. The obliquity of the Chik Affirmation in relation to the LSS Confirmation highlights the shadowy nature of the allegations of false accounting and misrepresentation which cannot be bolstered by mere reporting to the police by the Defendant. 46.In my view, whilst there are disputes of fact (especially in relation to the Cheque Notation on the reverse of the Cheque) that cannot be resolved on affidavit (so that summary judgment is inappropriate), the defence set up is overall shadowy and of little substance. It is a case of which I am very nearly minded to give judgment. But Mr Lam submitted that nevertheless the Defendant should be allowed unconditional leave to defend up to the amount of the counterclaim. 47.The pleaded counterclaim for a sum of HK$127,007.20 is less than the claim for HK$229,736.99 based on the Counterclaim Cheques in the Chik Affirmation. I agree that for the purpose of the summary judgment application, the Defendant is not bound by the Defence and Counterclaim. Order 14 rule 4(1) of the RDC provides that a defendant may show cause “by affidavit or otherwise to the satisfaction of the Court”, so if the affirmation in opposition raises triable issues or arguable defences, it is always open to the defendant to apply for amendment of the defence in due course. 48.But several matters are of note in respect of the counterclaim canvassed in the Chik Affirmation. First, the Chik Affirmation did not verify the plea in the Defence and Counterclaim that the Plaintiff wrongfully used the Defendant’s funds to pay for the decoration fee of the Plaintiff’s property at Wing Hing Industrial Building, so I will not consider the same. 49.Secondly, there is clear dispute of fact in respect of the counterclaim in relation to the Counterclaim Cheques and the nature of Nanking Property. The Defendant claimed that the Plaintiff by the Counterclaim Cheques took the Defendant’s funds for her own personal use, but the Plaintiff claimed that the monies were either used for the Nanking Property (which was beneficially owned by the Defendant) or by Ying Wing. 50.But in my view such factual disputes are insufficient to permit unconditional leave to defend to the extent of HK$229,736.99. According to Hong Kong Civil Procedure 2009 Vol.1 para.14/4/14 at p.197 :
51.Despite Mr Lam’s persuasion, I am not convinced that the Plaintiff’s claim and the Defendant’s counterclaim arise from the same transaction. Rather, it is plain as pikestaff that they arise from separate and distinct transactions covering different properties, different funds, different uses and different periods. In the circumstances, I am unable to draw assistance from the Defendant’s counterclaim to consider giving unconditional leave to defend. IX. Conclusion 52.In the circumstances, I grant conditional leave to defend to the Defendant in respect of the Plaintiff’s claim and make the following orders (but the costs orders are on nisi basis) :
53.At the hearing I raised with counsel Order 1A rule 4(e) of the RDC that will come into effect on 2nd April 2009. Active case management includes encouraging the parties to use alternative dispute resolution procedure if the court considers that appropriate, and facilitating the use of such a procedure. The parties and their legal representatives should assist the court in discharging such duty. 54.Here, the litigation involves a family company and the disputes involve various siblings. The Plaintiff’s claim and the Defendant’s counterclaim require revisiting various transactions and properties involving the family company and several siblings. Further, it appears from the documents there may well be other disputes amongst various players which are not the subject of the present litigation, eg the ownership/status and the consequences on sale of the Nanking Property, and the status/payments in respect of the Wing Hing Industrial Building property. Given the familial relationship amongst the various players, and the entwined disputes amongst the siblings, counsel and solicitors acting for the parties may wish to carefully consider whether there are other options for satisfactory resolution of the disputes other than by litigation and to explore with their respective clients other possible options including mediation. 55.If the parties and their legal representatives consider mediation to be a viable alternative, they should jointly write to the learned Master hearing the CMC as soon as possible to seek directions on the conduct of this action and the scheduled CMC with a view to save costs but always bearing in mind that after implementation of the Civil Justice Reform the court will not countenance unwarranted delay.
Representation: Mr Peter K C Wong instructed by Messrs Rowdget W Young & Co for the Plaintiff. Mr Andy Y H Lam instructed by Messrs Yeung & Chan for the Defendant. |
Cases cited in this judgment