The New China Hong Kong Group Ltd (in Creditors' Voluntary Liquidation) and Another v. Ng Kwai Kai, Kenneth and Others

HCA 519/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 519 OF 2010

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BETWEEN

Before : Hon Sakhrani J in Chambers

Date of Hearing : 28 October 2010

Date of Judgment : 28 October 2010

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1.This is an appeal from the orders of Master Levy made on 9 September 2010 at a directions hearing.

2.By a summons dated 20 August 2010 returnable on 9 September 2010 the plaintiff sought the relief set out in the summons.  These are preservation orders sought under Order 29, rule 2 of the Rules of the High Court.  However, as is plain from the summons, the summons was estimated to last three minutes, as estimated by the plaintiff.

3.By a summons dated 23 August 2010 the 2^nd, 4^th, 5^th and 7^th defendants applied for the writ of summons and the statement of claim to be struck out and for the action to be dismissed against them.  That summons was also returnable on 9 September 2010 and was also estimated to last for three minutes. 

4.There can be no doubt at all in my mind that the hearing before the master on 9 September 2010 was purely a directions hearing estimated to last for three minutes and nothing else.  At that hearing the master made two orders.  She ordered that the plaintiff’s summons and the summons of the 2^nd, 4^th, 5^th and 7^th defendants be adjourned for argument before a judge in chambers to a date to be fixed with two days reserved.  Those dates have now been fixed before Fok J on 4 and 5 January 2011.  

5.She also gave directions for the filing of the evidence in respect of both summonses.  It is quite plain that as far as the summons for a preservation order of the plaintiff, directions have been given for the filing of evidence. The time for the filing of such evidence has not yet expired. 

6.There is no doubt in my mind that the orders made by the master were clearly case management decisions and, in my view, her decisions cannot be faulted.

7.In respect of the defendants’ summons, she also ordered that the time for the 2^nd, 4^th, 5^th and 7^th defendants to file a defence be extended until 28 days after the final determination of the strike out application or such time as ordered by the judge.  I see no basis for appealing that order. The order, in my view, was an eminently sensible order to make as a matter of proper case management. 

8.The statement of claim is a complex document in respect of a complicated and substantial claim by the plaintiffs.  With schedules it runs into 84 pages.  There is a pending application to strike out the claim and for the action to be dismissed by these defendants.  If such an application is successful then it will not be necessary to serve a defence.  In my view, it would be a complete waste of time and substantial legal costs to require these defendants to serve a defence before the application to strike out is disposed of.  As a matter of proper case management the master made the order that I have mentioned and, in my view, her decision cannot be faulted.

9.Mr. Alder has sought to rely on new material to say, as set out in the affidavit of Yee Ying Wan at paragraph 20, that had those facts been disclosed to the master at the hearing of 9 September 2010 the plaintiff would have sought to immediately amend the summons to refer to the proceeds of sale and would have sought immediate orders that the proceeds of sale be secured pending the final hearing of the summons and sought an order for the expedited hearing of the summons.  It is wholly misconceived to think that the master could have made any orders for preservation as under Order 32, rule 11(1)(d) the master had no jurisdiction to make such an order.  The master did the only thing that she could have done properly namely, to refer the matter to a judge, which she did, and to be heard at the same time as the strike out application which, in my view, was the proper course to adopt. 

10.There is no merit in this appeal and I dismiss the appeal.

11.The appeal is dismissed with costs to the 2^nd, 4^th, 5^th and 7^th defendants to be paid by the plaintiffs.

Mr Edward Alder, instructed by Messrs Stephenson Harwood, for the Plaintiffs

Mr Samuel Chan, instructed by Messrs Fred Kan & Co., for the 2^nd, 4^th, 5^th and 7^th Defendants