The Joint and Several Trustees of the Property of Karson Oten Fan, Karno (in Bankruptcy) v. Kong Suk Chun and Others

HCMP 1101/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO1101 OF 2011

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D E C I S I O N

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1.I will refuse the application under the defendants’ summons for the following reasons:

2.Under paragraph 34 of the Practice Direction 5.2:

“A PTR is not an extension of the CMC. The Court expects a case to be ready for trial. Late interlocutory applications may be dismissed on the basis of delay alone.”

3.The force of these words is not reduced just by reason of the lack of a CMC in the present case.  Absent exceptional circumstances and good reason, the court may dismiss a late application on the basis of delay alone.

4.In the present case, the defendants purport to put in 5 additional affirmations coming from 5 new witnesses.  The parties have been given more than a fair opportunity since the issue of the trustees’ originating summons in June 2011 to file and serve affirmation.  The parties have attended before Deputy Judge Lok and have been given an opportunity to file a last round of affidavits.  The defendants did so in May 2013, and the plaintiffs had responded to it in July 2013.  There had been approximately 6 months of inaction before the defendants took out the present summons for filing of 5 further affirmations.

5.No explanation for delay has been given, except for a bare assertion that the parties had been negotiating settlement.  But when one looks at the contents of the 5 affirmations, there was no reason why these 5 witnesses could not have given their affirmations at the time when, eg Madam Kong put in hers.

6.The late application will cause prejudice to the plaintiffs.  The plaintiffs are trustees and naturally, they need to do investigation, eg by getting information from creditors.  This would not be an easy job given that there are only about 4 weeks before the trial, with an intervening Chinese New Year holiday.

7.The need to make further investigations may cause new affidavits to be filed in response and it may have the effect of derailing the trial.  Even if it will not derail the trial, it will not be fair for counsel’s attention to be diverted at this stage of preparation for trial to draft the necessary further affirmation and to consider further evidence before the trial.  Should the court give leave to the file of further affirmations, it may be that the original 4 days’ trial will be insufficient having regard to the need to cross-examine the 5 new witnesses.

8.Taking all circumstances into account, I do not consider it appropriate to grant leave to file these 5 affirmations, and I dismiss the defendants’ application.  Costs will be to the plaintiffs.

9.This PTR does not involve any issues of complication.  Even the summons itself I do not consider as involving a matter of complication.  Accordingly, there will be award of certificate for one counsel, and that will be for junior counsel.

10.Subject to that, I believe, the costs should be on indemnity basis for the observations given by Deputy Judge Lok in paragraph 53 of HCA 3291/2003, 7 May 2013.  I have given my reasons already, there is simply no explanation for the delay, the evidence ought to be available at the time even when Madam Kong first put in her affirmation.  This late application, in fact, is a waste of time.  I consider it fit to award indemnity costs.

Ms Linda Chan, SC leading Mr Hugh Kam, instructed by Deacons, for the plaintiffs

Mr Jeffrey Sze, instructed by Tam, Pun & Yipp, for the defendants