The Incorporated Owners of Kin Ho Ind. Bldg., (Block 1 & 2) v. Tam Wing Pak

HCA 2137/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2137 OF 2006

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BETWEEN

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Before: Deputy High Court Judge L. Chan in Chambers

Date of Hearing:   14 May 2010

Date of Decision:  14 May 2010

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D E C I S I O N

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1.This case was started by the plaintiff on 27 September 2006. The defendant was represented by solicitor and counsel from the start until 12 November 2008 when he appeared in person. His legal representation by solicitors and counsel resumed on 18 December 2009. Pleadings have been amended. There have also been two rounds of exchange of witness statements. There has also been an exercise of specific discovery. In a nutshell, all preparation has been done and a trial has been fixed to start on the 24th of this month with two days reserved. No doubt the amount of the claim is well within the jurisdiction of the District Court. There is also a claim for injunction which the defendant says has no merit.

2.The defendant on the 7th of this month made an application for this action to be transferred to the District Court and I am referred to section 43(3) of the District Court Ordinance which provides:

“(3)  The Court of First Instance is required to make an order under this section unless it is of the opinion that, by reason of the importance or complexity of any issue arising in the action or proceeding, or for any other reason, the action or proceeding ought to remain in the Court of First Instance.”

3.No doubt this case can be transferred to the District Court on the matter of jurisdiction. However, this case was started in September 2006 and will be tried in the next 10 days and it is a relatively simple and straightforward matter as it is only set down for two days. I think these are the reasons for me to exercise my discretion not to transfer it to the District Court as the result of transfer would delay the trial of the action by up to six months from now.

4.There is also an application to strike-out the injunction. It has not been pursued this morning and I dismiss it as part of the summons.

5.I therefore dismiss the summons and I further order the defendant to pay the costs of this application to the plaintiff.

(Discussion re applicable scale for costs)

6.I think the whole case should be within the jurisdiction of the District Court and I exercise my discretion to order costs to be taxed in the District Court Scale.

Mr Martin Wong, instructed by Messrs Tony Kan & Co., for the Plaintiff

Mr Jerome Liu, instructed by Messrs Yeong & Co., for the Defendant