Lee Chick Choi v. Society of Wine Educators - Hong Kong Chapter and Another

HCMP 1203/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1203 OF 2013

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REASONS FOR DECISION

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1.The plaintiff commenced these originating proceedings against the defendants for injunctive relief. As directed by the court, the defendants took out an application on 17 July 2013 to strike out the claim.

2.The plaintiff then took out an application for interim injunction against the defendants.  The application was heard and dismissed by Au-Yeung J on 26 July 2013.  Reasons were handed down on 2 August 2013 (“the Decision”).

3.Further directions were given for the conduct of the originating proceedings and the striking out application; and the two were directed to be heard at the same time in open court, which will take place on 10 September 2013.

4.The parties have filed the following affidavits in respect of the originating proceedings and the striking out application:

(1) Affirmation of the plaintiff dated 17 June 2013;

(2) Affirmation of the 2^nd defendant dated 5 July 2013;

(3) Affirmation of Yuen Oi Yee Lisa dated 22 July 2013 (for the plaintiff);

(4) Affirmation of the 2^nd defendant dated 8 August 2013;

(5) Affirmation of the plaintiff dated 19 August 2013; and

(6) Affirmation of the plaintiff dated 21 August 2013.

5.Yuen Oi Yee Lisa mentioned above (“Yuen”) is the wife of the plaintiff.

6.By summons filed on 19 August 2013, the plaintiff applies for leave:

(1) to replace the 1^st defendant by Mr Benny Chung (“Chung”) and Mr Danny Wong (“Wong”); and

(2) to expunge certain parts of the 2^nd defendant’s 2 affirmations that refer to Yuen.

7.At the end of the hearing, I dismissed the plaintiff’s application with costs summarily assessed at HK$25,876, payable in 14 days.  As indicated, I now give my reasons.

THE CLAIM AND THE STRIKING OUT

8.The plaintiff and the 2^nd defendant used to be students of Mr Tommy Lam (“Lam”) in various wine courses.  Lam founded the 1^st defendant in 2012, which was registered as a society under section 5A(1) of the Societies Ordinance.  The 2^nd defendant was its chairman.

9.Two meetings of the executive committee (“ex-co”) members of the 1^st defendant are in question.  The first meeting was held on 21 January 2013.  It was alleged that the ex-co members present (including the 2^nd defendant and the plaintiff) by majority resolved not to give an honorary title in the 1^st defendant to Lam.  The second meeting was held on 31 March 2013.  It was resolved by majority that Lam, if he chose to accept, might use the title of honorary adviser of the 1^st defendant until the following AGM in 2015.  The plaintiff was allegedly not notified of this second meeting.

10.By these originating proceedings, the plaintiff seeks an injunction to restrain the defendants from conferring the title of honorary adviser of the 1^st defendant to Lam on the following grounds:

(1) The meeting on 31 March 2013 was void and invalid, contrary to the 1^st defendant’s constitution.

(2) In view of (1), the prior decision at the meeting on 21 January 2013 was final and conclusive.

11.The defendants seek to strike out the claim on the ground that it discloses no reasonable cause of action; it is frivolous or vexatious; and it is otherwise an abuse of process of the court.  O.18, r.19 of the Rules of the High Court (“RHC”) and the inherent jurisdiction of the court are invoked.

JOINDER OF PARTIES

12.The application was effectively for leave to remove the 1^st defendant and to add 2 individuals as defendants.

13.O.15, r.6 of the RHC provides that:

“(1) No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

(2) Subject to the provision of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application –

(a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b) order any of the following persons to be added as a party, namely-

(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

(3) An application by any person for an order under paragraph (2) adding him as a party must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter or, as the case may be, the question or issue to be determined as between him and any party to the cause or matter.

……”

14.The plaintiff attributed the need for his present application to what Au-Yeung J said in the Decision, specifically paragraph 25.  In that paragraph, Au-Yeung J explained that even if the plaintiff managed to show a serious issue to be tried in his claim, insofar as the 1^st defendant was concerned, it was not a legal entity that could be sued.  Purportedly based on that, the plaintiff now wanted to replace the 1^st defendant by Chung and Wong as they were 2 of the office bearers of the 1^st defendant present at both meetings in question.

15.I rejected the application for the following reasons:

(1) One should not lose sight of what was also said in paragraph 24 of the Decision.  Her Ladyship expressed serious doubt as to whether the plaintiff has a viable cause of action in the present case.  Suffice it to say that I came to the same view, upon my reading of the papers and consideration, for the purpose of the present application.  I would say the same in respect of the claim against the 2^nd defendant and the intended claim against the 2 proposed new defendants in their personal capacity.

(2) Even assuming that there were a viable cause of action against the 1^st defendant but that it should be the general membership or the ex-co members of the society that should be sued, I fail to see how Chung and Wong were singled out.  The 1^st defendant has members.  The ex-co meeting on 31 March 2013 were attended by all 7 members of the ex-co of the 1^st defendant.  The resolution being impeached by the plaintiff was passed after 6 of them voted in favour.  That Chung and Wong were said to be the officer bearers present in both meetings in question is not the test.

(3) The Decision was handed down on 2 August 2013.  The plaintiff took out his application more than 2 weeks later.  Now this application was heard just 8 days before the scheduled hearing of the originating summons and the striking out application. What follows if Chung and Wong were joined would inevitably mean that the hearing date could not stand.  A milestone date shall not be moved unless there are exceptional circumstances.  The plaintiff put upon himself a heavy burden of explaining and justifying.  He failed to discharge the burden.

(4) Neither limb under O.15, r.6(2)(b) cited above was satisfied.  It was neither necessary nor just and convenient to allow the joinder of defendants in the circumstances of this case.  Nor should that be allowed at this stage.

16.The plaintiff did not seem to intend to proceed with the application to remove the 1^st defendant if that to add Wong and Chung as defendants failed.  I therefore left it at that.

THE 2^ND DEFENDANT’S AFFIRMATIONS

17.O.41, r.6 of the RHC provides that the court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive.

18.The plaintiff is seeking to “delete or disregard my wife’s personal data being included in the 2^nd defendant’s affirmations filed and served on 5 July and 8 August 2013”.  They mainly relate to:

(1) §§28-30 and exhibits “HL-6” and “HL-7” of the 2^nd defendant’s 1^st affirmation; and

(2) §§11-25 and exhibits “HL-8” to “HL-11” of the 2^nd defendant’s 2^nd affirmation.

19. I refused the application for the following reasons:

(1) Reference to Yuen was first made in the 1^st affirmation of the 2^nd defendant; and that was precisely for the purpose of pointing out the extent of her involvement in the present dispute between the parties.  Emails from Yuen in that regard were exhibited.

(2) As a result, Yuen saw fit to file her own affirmation in response and apparently in support of her husband’s claim.

(3) It was after reference to these affirmations that the court came to the Decision in the plaintiff’s application for interim injunction.

(4) Further reference to Yuen and production of exhibits in the 2^nd affirmation of the 2^nd defendant served dual purpose, namely in opposition of the claim and in support of the striking out application.

(5) As mentioned, the defendants’ application is based on the grounds that, among others, the originating proceedings were frivolous or vexatious or otherwise an abuse of the process of the court.

(6) The relevant paragraphs and exhibits in the 2^nd affirmation of the 2^nd defendant, together with the previously filed affirmations, would be relied on by the defendants to show that the plaintiff in conjunction with Yuen behind him have conducted these proceedings in such manner that renders these proceedings to be liable to be struck out on those grounds.

(7) I was not impressed that the plaintiff clearly demonstrated at this stage that those parts of the affirmations of the 2^nd defendant in question were irrelevant or that reliance on them for the purpose of the defendant’s striking out application would be illegitimate.

(8) How the evidence would be assessed of course would be a matter for the judge hearing the originating summons and the striking out application on 10 September 2013.

20.Hence my decision.

The plaintiff, in person, present

Miss Yvonne Fong, instructed by Messrs Danny K H Yu & Co for the 1^st and the 2^nd defendants