百州年投資管理集團有限公司 v. 銀泰百貨(集團)有限公司 and Another

HCA 507/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 507 OF 2013

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D E C I S I O N

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1.This is the 1^st defendant’s appeal against the order of Master R Lai dated 25 August 2014. The Notice of Appeal was filed on that same day.

2.On 25 August 2014, Master R Lai made the following order:

(1)   time for the plaintiff to file and serve its affirmation in opposition to the 1^st defendant’s striking out application be extended to 15 October 2014;

(2)   the hearing scheduled on 24 September 2014 be vacated and re‑fixed to be heard before a Master with 3 hours reserved; and 

(3)   costs of the plaintiff’s adjournment application be to the 1^st defendant payable forthwith and summarily assessed at HK$5,000.

3.On the same day, the 1^st defendant lodged this appeal for an order:

(1)   that the 1^st defendant’s striking out summons be heard on 24 September 2014 as originally scheduled by consent; and

(2)   in terms of the 1^st defendant’s unless order application requiring the plaintiff to file its evidence in opposition within 7 days, failing which the plaintiff be debarred from doing so.

4.Having re‑heard today the applications that were before the Master, I am satisfied that the 1^st defendant is entitled to succeed in this appeal.

(1)   First, the plaintiff had ample time to file evidence in opposition.  In total, the plaintiff had 56 days from 7 June 2014 to 1 August 2014 (both days inclusive) to file evidence.  Taking into account the de facto additional time from 1 August 2014 to 25 August 2014 (when Master R Lai made his order), the plaintiff had a total of some 80 days to file evidence.

(2)   Secondly, the original timetable was ordered by consent.  Indeed, the fact that the plaintiff and the 1^st defendant had both agreed to that original timetable, including the 24 September2014 hearing date, is crucial in highlighting the unacceptable manner in which the plaintiff has contested the 1^st defendant’s striking out application. 

(3)   Thirdly, the explanations given by the plaintiff for its failure to file evidence in opposition and the reasons in support of its adjournment application are inadequate.  It is important to stress that Michael Chin, one of the directors of the plaintiff, was alleged to have eye illness and difficulties in giving instructions to ONC Lawyers on as early as 18 November 2013.  It was not something which took place after the plaintiff had agreed to the timetable or had sought extension of time in early July 2014.  Further, the medical “certificates” produced by the plaintiff are also unhelpful.  Dr Dylan Chan’s letter is irrelevant given he only said that Michael Chin was “not fit to work”, but he was asked only to give instructions to the plaintiff’s lawyers and not to work. Dr George Ng said, without giving meaningful explanations, that Michael Chin was “not suitable for litigation procedures for the next 3-4 months”, but what he had intended “litigation procedures” to mean was decidedly unclear.   Dr George Ng’s letter of 13 August 2014 (produced pursuant to Master K Lo’s order dated 11 August 2014) gave no clarification or further assistance, and he repeated that Michael Chin was “not suitable for involving in any litigation procedures, given his present mental and physical condition”.  The alleged mental condition was only that Michael Chin had developed “depression” due to eye illness, but there is no evidence of how his mental state has affected his abilities.  Dr Alvin Kwok’s letter, like Dr Dylan Chan’s, is unhelpful as he only recommended Michael Chin to “have good rest”. 

(4)   All Michael Chin has to do for the purpose of the plaintiff’s filing evidence in opposition is to listen to what his lawyers tell him and then tell them whatever he has to say; he does not even need to read any document.    In this regard, I note from paragraph 8 of the 2^nd Affirmation of Yan, Sherman Chuek‑ning filed herein on 7 August 2014 that ONC Lawyers had already drafted an affidavit in opposition to the 1^st defendant’s striking out summons.

5.For the reasons stated above, I am satisfied that the 1^st defendant’s appeal should succeed and Master R Lai’s order should be set aside.

6.I order that unless by 5 pm on 3 October 2014 the plaintiff do file and serve an affirmation in reply to the 2^nd Affirmation of Jiang Zhi Xiong filed herein on 6 June 2014, the plaintiff be debarred from filing any affirmation in opposition to the 1^st defendant’s striking out application under its summons filed herein on 6 June 2014.  I think 14 days instead of 7 days should be the final chance given to the plaintiff. 

7.Given the amount of the plaintiff’s claim, it is clear that whichever side succeeds in the striking out application, the losing party will very likely appeal.  To ensure costs-effectiveness and the most expeditious disposal of the matter, given the delay that has already been caused by the plaintiff, I order that the 1^st defendant’s striking out application be heard by a Judge in Chambers, on the earliest possible date to be fixed with an estimated time of 3 hours. 

8.On the question of costs, in making its adjournment application the plaintiff has acted, in my view, most unreasonably and irresponsibly without respect to the process of the court or any sense of what is procedurally just. 

9.In the circumstances, I make the costs orders as follows:

(1)   Costs of the 1^st defendant’s unless order application be costs in the cause of its striking out application; and

(2)   Costs of the plaintiff’s adjournment summons and also this appeal be to the 1^st defendant, to be paid forthwith and on an indemnity basis.  Such costs to be taxed if not agreed.

Mr Yonah Leung, of ONC Lawyers, for the plaintiff

Mr Mike S K Lui, instructed by W K To & Co, for the 1^st defendant

2^nd defendant was not represented and did not appear