Lam Chi Tat, Anthony and Another v. Kam Yee Wai, Andrew

CACV 139/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 139 OF 2012

(ON APPEAL FROM DCCJ NO. 1545 OF 2009)

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BETWEEN

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DECISION

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Hon Lam JA (giving the Decision of the Court) :

1.We gave our judgment on 28 January 2013. In the process of drawing up the formal order in this appeal, parties cannot reach agreement on the terms of the order. The Defendant put forward a paragraph for judgment to be given for the Defendant in the sum of $30,497.50 together with interest thereon at judgment rate from 15 March 2005 to date of payment. The Plaintiff said the paragraph should not be included as it was not an order this court had made in our judgment of 28 January 2013.

2.Pursuant to directions given on 26 February 2013 [“Directions”], the parties have filed submissions on the question.  Having read those submissions, this court is able to decide the question without a further hearing (this possibility was alluded to in the Directions).  We now give our decision.

3.Mr Tsui on behalf of the Defendant submitted that the new paragraph is consequential to the actual determination in our judgment, see the calculations set out at para 2 of his written submissions.  It has been prayed forth in the Notice of Appeal and the Plaintiff is not taken by surprise.

4.On behalf of the Plaintiff, their solicitor simply contended that the order should be drafted in accordance with the terms of the judgment and maintained that the formal order should not go beyond what were set out at paras 57, 58 and 62 of the judgment.

5.The Plaintiff cannot dispute that the new paragraph is consequential.  It seems to us that it must necessarily follow from what had been said in our judgment that the Defendant is entitled to such order.

6.We find the stance adopted by the Plaintiff unhelpful and inconsistent with the underlying objectives in Order 1A.  Parties and their lawyers should be mindful of their duties under Order 1A Rule 3.

7.Very often, in a reasoned judgment the court focuses on matters argued before it.  There may well be matters which are consequential and per se uncontroversial between the parties which the court does not deal with expressly in the reasoned judgment.  It does not mean that such matters should not be attended to in the formal order.  On the contrary, there is every reason why the formal order should cover those consequential matters.  Parties should do their best in coming up with a draft order which deals with every indisputable consequential item that needs to be addressed in the proceedings.  Otherwise, it would simply be a recipe for further applications before the court which would generate more costs and time to be incurred.  That would not be consistent with underlying objectives in Order 1A. Of course, if there are outstanding matters which are disputed, it would not be appropriate to include those in a draft order as if it is undisputed, at least not until such disputes have been properly ventilated and decided by the court.

8.Therefore, whenever a party responsible for drawing up a formal order detects there are matters which are within the ambit of the legal proceedings but not expressly addressed in the reasoned judgment, he or she should discuss with the other parties to see to what extent such matters are consequential and uncontroversial.  Parties should be mindful of what we said above and their duties under Order 1A Rule 3 in handling the situation.  If parties can come to agreement on those matters, they can submit a draft order (endorsed with their consent) covering those matters for the approval of the court.  If the parties cannot agree, and if one party has good reason to believe that the additional paragraph should not be disputed, he or she can write to the court with a draft order seeking directions.  However, in cases of serious disputes, he or she should make an application by summons. In the meantime, the formal order would not be perfected.             

9.It must be emphasized that what we said above is confined to matters properly within the ambit of the set of legal proceedings which the court is seised with.  Matters outside the ambit of the proceedings cannot be added to the formal order as the court has no jurisdiction to entertain the same.

10.Applying these principles to the present case, we are of the view that the Plaintiff should have agreed to the inclusion of the new paragraph to the formal order.  It is quite obvious that the order for payment is consequential and the Plaintiff did not have any bona fide ground to dispute the same. It is also quite clear that the new paragraph is within the scope of this appeal.

11.We would therefore approve the inclusion of the new paragraph to the formal order.  We also approve the addition of the dismissal of the Plaintiff’s claim in para 1 of the draft submitted by the Defendant.

12.We also order the costs pertaining to the correspondence and written submissions on this issue be borne by the Plaintiff. It is high time that litigants and those advising them should observe their duty under Order 1A Rule 3.  They should not be surprised that non-compliance with such duty be visited by costs consequence, see Order 62 Rule 5(1)(aa).  In view of the amount of works involved, we would make an order nisi to fix such costs at $10,000.  If either party disagrees, such costs are to be taxed and the taxing master will bear in mind our order nisi in determining the costs of taxation.  

Written submission by Lo & Lo for the Plaintiffs/Respondents.

Written submission by Mr Raymond W N Tsui, instructed by Kam and Fan, for the Defendant/Appellant.