Leung Kwai Ling v. Hong Kong Land Ltd

HCA 432/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 432 OF 2013

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REASONS FOR DECISION

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I. Introduction

1.On 8 March 2013, the plaintiff commenced the present action against the defendant “for compensation and damages for negligence and other claims” to be detailed in the Statement of Claim then yet to be filed.  The Statement of Claim was filed on 2 July 2013.  The plaintiff says that the defendant was the guarantor in respect of the Lai Sing Court Redevelopment Project, and is liable for all liabilities of the developer HK Glory Properties Limited under the Development Agreement dated 1 May 2001 and the Supplemental Development Agreement dated 31 October 2002 in respect of the unit in Lai Sing Court of which the plaintiff and Lee Yiu Kei were the registered owners.

2.On 2 July 2013, the plaintiff served the Writ of Summons in the present action on the defendant’s solicitors (“JSM”).  On 10 July 2013, JSM on behalf of the defendant filed acknowledgment of service giving notice of intention to defend.

3.On 16 July 2013, the defendant filed a summons seeking the following orders (“D’s Summons”):

(a) to strike out the plaintiff’s statement of claim in the present action under Order 18 rule 19 of the Rules of the High Court (“RHC”) and under the inherent jurisdiction of the court on the ground that it discloses no reasonable cause of action, it is frivolous and vexatious, and it is an abuse of the process of the court, and to dismiss the plaintiff’s present action against the defendant with costs;

(b) to extend time for the defendant to file and serve their Defence until 28 days after the determination of D’s Summons;

(c) to apply for restricted proceedings order (“RPO”) and restricted applications order (“RAO”) against the plaintiff.

4.On the same day, the defendant filed the affidavit of their director Robert Yau Chung Wong (“Mr Wong”) in support of D’s Summons.  It is the defendant’s case that the plaintiff’s present action is unmeritorious and similar to other legal actions commenced by the plaintiff against their subsidiary HK Glory Properties Limited (HCA 347/2013) and others which all concern matters in respect of the Lai Sing Court Redevelopment Project.  The defendant says that the earlier legal actions commenced by the plaintiff were dismissed, and in HCA 374/2013 HK Glory Properties Limited had issued a summons similar to D’s Summons herein against the plaintiff, which summons was scheduled to be heard on 1 August 2013.  Mr Wong also relies on his affidavits filed in HCA 347/2013 in support of D’s Summons in the present action.

5.On 23 July 2013, the plaintiff issued a summons for the following orders (“P’s 1^st Summons”):

(a) to refuse all requests for court orders by the defendant, ie to refuse all strike out orders, RAO/RAO, and order for extension of time to file and serve Defence;

(b) to dismiss D’s Summons;

(c) to grant injunction to stop D’s Summons and their future applications and summonses for striking out order, RAO and RPO against her, her claims and her cases;

(d) alternatively, to issue RAO against the defendant to stop D’s Summons and their future applications and summonses for striking out order, RAO and RPO against her, her claims and her cases.

6.On the same day, the plaintiff filed her affidavit in support of P’s 1^st Summons. She claims there were many lies and untruths in D’s Summons and Mr Wong’s affidavit.  She says D’s Summons and applications therein were oppressive, unfair and malicious, an abuse of the court’s process, an attempt to obstruct the course of justice, and a fraud on the court.  She claims she had a reasonable cause of action, and her case was not frivolous or vexatious or an abuse of the court’s process.  She denies all the lies and untruths in Mr Wong’s affidavits and in the defendant’s assertions in her previous cases in which masters made erroneous decisions as a result of lies by the defendants.

7.On 28 July 2013, the plaintiff lodged her skeleton submissions, chronology of events and list of authorities for the purpose of D’s Summons and P’s 1^st Summons in the present action by fax.  On the following day, the plaintiff lodged further chronology of events and list of authorities also for the purpose of D’s Summons and P’s 1^st Summons in the present action by fax.

8.At the hearing on 1 August 2013, the plaintiff informed the court she would adopt and rely on her affidavits (ie those that the court had granted leave for her to adduce), skeleton submissions, chronology of events and list of authorities filed/lodged for the purpose of the defendant’s summons dated 15 April 2013 in HCA 374/2013 scheduled to be heard on 1 August 2013 in her support of P’s 1^st Summons and in opposition against D’s Summons in the present action.

9.At the hearing on 1 August 2013, I dismissed P’s 1^st Summons.  There is no reason why costs should not follow event, so at the hearing I granted an order that the plaintiff do pay the defendant’s costs of the P’s 1^st Summons to be taxed if not agreed.  These are the Reasons for Decision for my dismissal of P’s 1^st Summons.

10.The reliefs sought in P’s 1^st Summons are essentially for challenging D’s Summons and for preventing the defendant from seeking the reliefs sought in D’s Summons.  In my view, D’s Summons should be properly ventilated by the parties and adjudicated by the court.  The plaintiff should raise her criticisms against D’s Summons and Mr Wong’s affidavit by relying on her affidavits in opposition (see paragraph 8 above), her written submissions, chronology of events and list of authorities (see paragraphs 7-8 above) and her oral submissions at the hearing of D’s Summons, and not by way of satellite preemptive summons to ward off D’s Summons.  I have carefully considered the plaintiff’s written and oral submissions, but I am not persuaded that D’s Summons is amenable to be struck out in a summary manner without it being properly argued and heard.

11.D’s Summons was returnable before me on 1 August 2012.  It was heard together with the substantive hearing for argument in respect of the defendant’s summons dated 15 April 2013 in HCA 347/2013, and my decision which has been reserved will be handed down separately.

The plaintiff appeared in person

Ms Leung Siu Man Nancy, of Mayer Brown JSM, for the defendant