Leung Kwai Ling v. HK Glory Properties Ltd

HCA 347/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 347 OF 2013

____________

________________________

REASONS FOR DECISION

________________________

1.I refer to my Reasons for Decision handed down on 3 May 2013 in the present action (“3/5/13 Reasons”). For easy reference, I shall adopt the abbreviations therein.

2.9 May 2013 is the return day for D’s Summons, the adjourned P’s 1^st Summons and paragraphs 1, 3 and 4 of the order sought in the adjourned P’s 2^nd Summons.

3.On 6 May 2013, the plaintiff issued an inter partes summons for the following orders (“P’s 3^rd Summons”) which was also made returnable before me on 9 May 2013:

(a) to give all court orders requested in P’s 2^nd Summons which was adjourned;

(b) to strike out and dismiss all requests by the defendant for court orders including strike out orders, RAO and RPO and orders for extension of time for filing Defence on the basis that the defendant’s requests are an abuse of the court’s process and there are no reasonable grounds for the defendant’s requests;

(c) to strike out all exhibits in the defendant’s affidavits that have been declared void, illegal and cancelled by the plaintiff and all related parts in the defendant’s affidavits;

(d) to issue RAO against the defendant to stop all applications by the defendant “for strike out order, RPO & RAO against [the plaintiff]” under the Practice Direction for RAO;

(e) to enter default judgment, final judgment and summary judgment against the defendant under Order 19 rule 2 of the RHC;

(f) to dismiss D’s Summons.

4.In support of P’s 3^rd Summons and in opposition of D’s Summons, the plaintiff filed 3 affirmations dated 30 April, 6 May and 6 May 2013 respectively.  She also lodged her skeleton submissions and list of authorities by fax on 8 May 2013.

5.I will first deal with P’s 3^rd Summons:

(a)     Paragraphs 1, 2, 4 and 6 of the order sought in P’s 3^rd Summons (see paragraph 3(a), (b), (d) and (f) above) are unnecessary because they seek exactly the same reliefs as found in P’s 2^nd Summons.  Paragraph 2 of the reliefs sought in P’s 2^nd Summons has been dismissed, but the remaining reliefs will eventually be heard and determined by the court, so paragraphs 1, 2, 4 and 6 of the order sought in P’s 3^rd Summons are duplicative and fall to be dismissed.

(b)    Paragraph 5 of the order sought in P’s 3^rd Summons (see paragraph 3(e) above) is again unnecessary because it seeks exactly the same relief as paragraph 2 of the order sought in P’s 2^nd Summons.  As explained in paragraph 12 of my 3/5/13 Reasons, such relief is the same as the relief sought in P’s 1^st Summons.  Since P’s 1^st Summons will eventually be heard and determined by the court, paragraph 5 of the order sought in P’s 3^rd summons is duplicative and falls to be dismissed.

6.So at the hearing on 9 May 2013, I dismissed paragraphs 1, 2, 4, 5 and 6 of the order sought in P’s 3^rd Summons but without prejudice to P’s 1^st Summons and paragraphs 1, 3 and 4 of P’s 2^nd Summons.

7.In respect of paragraph 3 of the order sought in P’s 3^rd Summons (see paragraph 3(c) above), the relief sought is quite similar to the reliefs sought in the summons issued by the plaintiff on 11 March 2013 (see paragraph 2 of my 3/5/13 Reasons), which summons has been dismissed by Master Ho with costs (see paragraph 3 of my 3/5/13 Reasons). 

8.The plaintiff claimed that paragraph 3 of P’s 3^rd Summons is different from her summons dated 11 March 2013 in that the latter summons sought, inter alia, (a) to transfer the “exhibits” filed by the defendant in HCA 366/2012 to the present action (but save and except for those “exhibits” “declared void and cancelled” by her); (b) to debar the defendant from filing exhibits of voluminous emails with the defendant and JSM which are duplicative, irrelevant and unnecessary; and (c) to debar the defendant from filing exhibits of minutes of meetings which are irrelevant and unnecessary.

9.The plaintiff’s summons dated 11 March 2013 in essence sought to debar the defendant from filing as exhibits in this present action emails and minutes of meeting such as those presently exhibited to the affidavit of Robert Yau Chung Wong filed on 15 April 2013, and to disallow transfer to the present action of any “exhibits” “declared void and cancelled” by her. In short, the relief sought in paragraph 3 of P’s 3^rd Summons is in substance the same as or similar to the reliefs sought in the plaintiff’s summons issued on 11 March 2013 which is to prevent exhibits “declared void and cancelled” by her to be used in the present action.

10.P’s 3^rd Summons has been dismissed by Master Ho. In the circumstances, paragraph 3 of P’s 3^rd Summons is a collateral challenge to Master Ho’s order dated 22 March 2013, and falls to be dismissed.

11.Even if I am wrong and paragraph 3 of P’s 3^rd Summons is different from the reliefs sought in the plaintiff’s summons issued on 11 March 2013, I would still dismiss the same.  The plaintiff complained that the affidavit of Robert Yau Chung Wong filed on 15 April 2013 in support of the D’s Summons was full of lies and the offending parts including the exhibits thereto were liable to be struck out.  

12.In my view, D’s Summons is yet to be substantively argued by the parties and determined by the court.  I do not see any sufficient basis for the plaintiff to restrict the defendant’s liberty to file affirmation evidence with exhibits that they consider appropriate to support D’s Summons simply on the basis that the plaintiff herself has declared them to be void, illegal or cancelled.  Paragraph 3 of the order sought in P’s 3^rd Summons should be dismissed, and I dismissed the same at the hearing on 9 May 2013.

13.In summary, at the hearing on 9 May 2013, P’s 3^rd Summons was dismissed but without prejudice to P’s 1^st Summons and paragraphs 1, 3 and 4 of P’s 2^nd Summons.  There is no reason why costs should not follow event, and at the hearing on 9 May 2013, I granted costs in favour of the defendant and against the plaintiff in respect of P’s 3^rd Summons summarily assessed at HK$800.00 to be paid forthwith.

14.Turning to D’s Summons, P’s 1^st Summons and paragraphs 1, 3 and 4 of P’s 2^nd Summons, the hearing on 9 May 2013 was a 15-minute hearing which is plainly inappropriate for hearing substantive argument for these summonses.  At the hearing, the plaintiff wanted to deal with the outstanding summonses immediately on the basis that she had a clear sustainable case on the merits, and D’s Summons should be summarily dismissed.  I do not agree.  Given the affirmation evidence filed by the plaintiff so far (let alone the defendant’s affirmation evidence), it is not possible to properly and adequately deal with the substantive arguments at the 15-minute hearing on 9 May 2013.

15.In the circumstances, I granted the following case management directions at the hearing on 9 May 2013:

(a)     the plaintiff’s affirmations filed on 30 April, 6 May and 6 May 2013 shall stand as her affirmations in opposition of D’s Summons;

(b)    leave to the plaintiff to file and serve supplemental affirmation in opposition of D’s Summons within 21 days from today;

(c)     leave to the defendant to file and serve affirmation in reply within 14 days thereafter;

(d)    affirmations filed and served and/or to be filed and served by the plaintiff and the defendant respectively in support and in opposition of D’s Summons shall also stand as their respective affirmations in support and in opposition of P’s 1^st Summons and paragraphs 1, 3 and 4 of P’s 2^nd Summons;

(e)     no further affirmation shall be filed and/or served without leave of the court;

(f)     any application for such leave to file and serve further affirmation must be made not less than 14 days before the substantive hearing supported by reasons on affirmation;

(g)     the hearing for argument in respect of D’s Summons, P’s 1^st Summons and paragraphs 1, 3 and 4 of P’s 2^nd Summons be adjourned for argument before a judge in chambers on a date to be fixed with 3 hours reserved;

(h)    no later than 7 days before the adjourned hearing for argument (excluding Saturday, Sunday and public holiday), the defendant shall lodge with the court and serve on the plaintiff the hearing bundle and their skeleton argument and list of authorities;

(i)     leave be granted to the plaintiff to lodge with the court and serve on the defendant her skeleton argument and (where appropriate) list of authorities no later than 3 days before the adjourned hearing for argument (excluding Saturday, Sunday and public holiday);

(j)     the time for the defendant to file and serve their Defence be extended until 14 days after the final disposal of D’s Summons, P’s 1^st Summons and paragraphs 1, 3 and 4 of P’s 2^nd Summons;

(k)    costs in respect of D’s Summons, P’s 1^st Summons and paragraphs 1, 3 and 4 of P’s 2^nd Summons (including the costs reserved in paragraph 16 of my 3/5/13 Reasons) be reserved.

The plaintiff appeared in person

Ms Melissa Wen Qing Kiang, of Mayer Brown JSM, for the defendant