Fook Lee Holdings Ltd v. Joy Future International Ltd and Another
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HCA 321/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE HIGH COURT ACTION NO 321 OF 2010 -----------------------------
Before : Deputy High Court Judge Au-Yeung in Chambers Date of Hearing : 31 January 2012 Date of Decision : 31 January 2012 ----------------------- D E C I S I O N ----------------------- 1.The plaintiff seeks to join new plaintiffs who were members of an investor group and join new defendants, the intended D3 and D4 who have not consented to be plaintiffs. It is the plaintiff’s case that these proposed plaintiffs and defendants have been referred to in the statement of claim. The joinder would not take the defendants by surprise and would not in any way affect the substance of the dispute. There is no claim for substantive relief or costs against the intended D3 and D4 if they do not take steps to derail the trial scheduled to commence on 27 February 2012. For the purpose of this hearing I am told that the intended D3 and D4 have been served with the hearing bundle now before me prepared by the plaintiff’s solicitors dated 30 January 2012. Additionally Mr Lam, counsel for the intended D4, confirmed that his solicitors have been served with the documents as per the list set out on pages 108 and 109 of the hearing bundle. 2.The application is taken out by the plaintiff under O.15 r.4. Having considered the evidence and arguments, I find that the joinder is not necessary for fairly disposing of the cause or matter. The plaintiff is suing on a tripartite agreement. It is a party to that agreement and has locus in its own right. The source of the loan which it passed on to the defendants does not affect the locus of the plaintiff. Neither the new intended plaintiffs nor the intended D3 or D4 are parties to the agreement. They are not joint contractors who should be added to complete the plaintiff’s cause of action. This is quite different from the scenario in the cases of ChinaVest II-A, LP v Chan Kueng Un Roy, CACV145/1998, 8.10.1998, Godfrey JA and Malayan Banking Berhad v China Insurance Co. Ltd, CACV424/2002, 10.6.2003, Woo JA. Nor were the intended D3 and D4 the donors of a power attorney. The plaintiff’s reliance on Hong Kong Civil Procedure 2012, paragraph 6/1/9 is unjustified. The plaintiff has not been able to identify any issues in dispute amongst the existing parties and the potential new parties. Joining the intended D3 and D4 will serve no real purpose at the trial. It is pertinent to note that the plaintiff itself takes the primary position that the joinder is strictly not necessary. 3.The purpose of the application appears to be to pre-empt any potential arguments to be raised by the current defendants, D1 and D2. On the face of the defence filed by D1 and D2, they do not appear to have raised any arguments as to the plaintiff’s locus to recover the entire sum of $35 million notwithstanding it is clear from the plaintiff’s current pleaded case that the sum had been contributed by other members of the investor group. 4.Today at my invitation, counsel for the intended D3 and D4 have also confirmed that their clients would not be jointly entitled to the $35 million as against the defendants, D1 and D2. It was entirely a housekeeping matter between the intended D3, D4 and the plaintiff as to how the $35 million should be treated that had nothing to do with D1 and D2. 5.Further the plaintiff has not explained why it will be necessary to join the intended D3 and D4 for the purpose of enforcement when the plaintiff does not purport to seek any relief against them. It is not clear as to why any enforcement would be directed against the intended D3 and D4 or require their cooperation when any order sought is against D1 and D2. 6.Finally, counsel for the intended D3 and D4 submit that their joinder will have an adverse impact on their client’s reputation. As I mentioned in the course of hearing the submission, there seems to be no evidence on this and so I give little weight to this line of submission. 7.Considering all the circumstances, I find no necessity for the joinder. 8.The lateness in this application is also one factor although not a weighty matter. Given that there are only 4 weeks before the trial, this late application for joinder will cause difficulty since the newly added defendants may then have to consider the position as to filing acknowledgment of service, defence and may have a right to cross-examine witnesses during the trial. This may affect the overall running of the trial. 9.Considering all circumstances, I am not minded to grant the application for joinder and I dismiss it.
Mr Samuel Wong, instructed by Sit, Fung, Kwong & Shum, for the Plaintiff Mr Kenneth C.L. Chan and Mr Billy N.P. Ma, instructed by Stephen Lo & P.Y. Tse, for the 1st and 2nd Defendants Ms Connie Lee, instructed by ONC Lawyer, for the Intended 3rd Defendant Mr Lam Chin Ching, Gary, instructed by Terry Yeung & Lai, for the Intended 4th Defendant | ||||||||||||||||||||
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