世界华商投资基金会有限公司

世界华商投资基金会有限公司 由此 A A HCA 2547/2007 B B IN THE HIGH COURT OF THE C C HONG KONG SPECIAL ADMINISTRATIVE REGION D D COURT OF FIRST INSTANCE ACTION NO 2547 OF 2007 E E _________________________ F F BETWEEN G G st WORLD CHINESE BUSINESS INVESTMENT 1 Plaintiff FOUNDATION LIMITED H H 世界華商投資基金會有限公司 I I ndHANDKEY CONSULTANT & 2 Plaintiff J J DEVELOPMENT LIMITED 基業顧問有限公司trading as THE HONOR K K DOCTORATE OF WORLD OUTSTANDING L L CHINESE世界傑出華人博士學會 rdM 3 Plaintiff M MA HING LEE HENRY馬興利 And N N st SHINE RAINBOW MARKETING LIMITED 1 Defendant O O 沐陽推廣有限公司 nd2 Defendant WONG SIU CHEUNG黃少璋 P P rd3 Defendant CHAN CHI KWAN陳紫君 Q Q _________________________ R R Coram : Before Madam Registrar Au-Yeung in Chambers thS Date of Hearing : 10 February 2010 S thDate of Judgment : 12 February 2010 T T U U V V 由此 - 2 - A A _______________ J U D G M E N T B B _______________ C C 1. The Plaintiffs’ solicitors failed to turn up at the case D D management conference (“CMC”) and the action was provisionally struck E out by a Master The Plaintiffs now seek restoration of the claim pursuant to E Order 25, rule 1C(3). F F G G Order 25, Rule 1C H H 2. Rule 1C provides as follows: I I “(1) Where the plaintiff does not appear at the case management conference …, the Court shall provisionally strike out the J J plaintiff's claim. … K K (3) Where the Court has provisionally struck out a claim … under paragraph (1) …, the plaintiff or the defendant may, before the expiry of 3 months from the date of the case L L management conference …, apply to the Court for restoration of the claim … (4) The Court may restore the claim … subject to such M M conditions as it thinks fit or refuse to restore it. (5) The Court shall not restore the claim … unless good reasons N N have been shown to the satisfaction of the Court. (6) If the plaintiff … does not apply under paragraph (3) or his application under that paragraph is refused, then- O O (a) the plaintiff's claim … stands dismissed upon the expiry of 3 months from the date of the case management P P conference …; and (b) (i) in the case of the plaintiff's claim, the defendant is entitled to his costs of the claim; …” Q Q 3. Mr. Lam submits that rule 1C(1) is akin to: R R S S (i) a regular default judgment to be set aside by a defendant; and T T U U V V 由此 - 3 - A A (ii) a standing unless order so that “unless the plaintiff attends B B the CMC, his claim will be struck out and will not be C C restored without leave of the Court”. D D Therefore the principles for applying for relief against sanctions and setting E E aside a default judgment are equally applicable. F F 4. I find force in Mr. Lam’s submission by comparing the wording G G and considering the legislative scheme under various rules. Order 25, rule 1C(4) is drafted in very similar terms to Order 13, rule 9 (and Order 19, rule H H 9). The latter provides that “… the Court may, on such terms as it thinks just, I I set aside or vary any judgment entered in pursuance of this Order.” A defendant has to apply promptly to set aside a default judgment and explain J J any delay; he has to explain why he let judgment go by default and that he K K has reasonable prospect of success. L L 5. Likewise, under Order 2, rule 5 where a party has failed to M M comply with an unless order, on any application for relief from any sanction, N N the Court shall consider all the circumstances including 10 factors. An application for relief must be supported by evidence. O O P P 6. Similarly, any judgment obtained where one party does not appear at a trial may be set aside by the Court, on the application of that Q Q party, on such terms as it thinks just. Again, the applicant has to, amongst R R others, explain his absence and show reasonable prospects of success. Unless the absence was not deliberate but was due to accident or mistake, the S S Court will be unlikely to allow a rehearing: paragraph 35/2/1 of the Hong T T Kong Civil Procedure 2010. U U V V 由此 - 4 - A A 7. The general theme derived from these rules is that the Court will B B not lightly accede to the request of a defaulting party to restore an action C C without sufficient explanation and consideration of the merits. This is to maintain the integrity of the timetable laid down by the Court or the rules and D D to ensure that a matter without merits should not continue to haunt an E E innocent party. F F 8. It is thus clear that under rule 1C(4) and (5), a plaintiff should G G first meet the threshold of showing “good reasons” in stage 1 and then the Court will consider whether, as a matter of discretion, it should grant the H H restoration in stage 2. If it decides to restore the Claim, the Court may I I consider conditions to be imposed in Stage 3. J J Stage 1 - Good Reasons K K L 9. The Plaintiffs’ solicitors gave 3 reasons to explain their L absence: M M N N (i) Parties were negotiating for mediation. (ii) Complications in the sense that there were 3 other actions O O involving the same parties. P P (iii) Mistake/oversight of a Plaintiff’s solicitor. Q Q 10. With regard to reason (i), mediation is done beyond the R R precincts of the court, and cannot override the milestone date fixed by the Court. In this case a Master has granted stay of proceedings for the purpose S S of mediation. That stay has long lapsed and the court’s timetable started to T T U U V V 由此 - 5 - A A run again without a mediator even agreed upon. Thus reason (i) is not a good one. B B C C 11. With regard to reason (ii), many cases are complicated and have related actions, but that is not a good reason for not appearing on a milestone D D date. Thus reason (ii) is not a good one. E E 12. With regard to reason (iii), solicitor’s fault may constitute a F F good reason. In PT Bank Pembangunan Indonesia (Persero) v. Tan Eddy G G Tansil [1997] HKLRD 57, in deciding whether to grant an extension of time for compliance with an unless order, the Court of Appeal held that where H H non-compliance was due to the default of the solicitor rather than the litigant I I himself such default should be regarded as an extraneous cause of non-compliance so far as the litigant is concerned, inclining the court J J towards granting him an extension of time. K K L 13. However, the solicitor has to explain how the fault came about. L In Secretary for Justice v. Hong Kong & Yaumati Ferry Co. Ltd. & anor M M [2001] 1 HKC 125, the solicitor wrongly calculated the time for filing a N N notice of appeal. Le Pichon JA held that the absence of any explanation of how the error arose made the solicitor’s conduct “inexcusable”. O O P P 14. In the present case, four weeks had elapsed after Master Ho informed the Plaintiff that the action was provisionally struck out before the Q Q Plaintiff wrote to him stating that "the parties were absent for the Case R R Management Conference by mistake.” The affirmation in support of this application stated that the failure to attend was due to oversight. Whose S S mistake? Whose oversight? It was only at the hearing that Ms. Kan for the T T Plaintiff affirmatively stated that it was the oversight of the solicitor as he U U V V 由此 - 6 - A A had failed to mark his diary. She explained that it took them 4 weeks to write to Master Ho because they needed to study rule 1C. B B C C 15. To present evidence in this manner is clearly unsatisfactory. What is more troubling is that reasons (i) and (ii) would have led to a D D deliberate decision not to attend the CMC, whereas reason (iii) would have E E arisen out of inadvertence. These reasons were inconsistent amongst themselves. F F G G 16. I am however mindful of the fact that all along the Plaintiffs’ solicitor has assumed the responsibility for the non-attendance and went on H H affirmation. It appears that the fault was not with the Plaintiffs themselves. I I st Given this is the 1 application of its kind before me and practitioners may not be familiar with rule 1C, I give the benefit of the doubt to the Plaintiffs’ J J solicitor. The Court would not want to dismiss a good cause for pure K K technical breach or inadvertence. I find that reason (iii) is a good reason in L the circumstances of this case. L M M Stage 2 - Exercise of Discretion N N 17. The Defendant has filed an affirmation to state that the O O Plaintiff’s claim has no merits. As rightly pointed out by the Plaintiff, the P P contents of this affirmation had been used when the Defendant applied previously to serve voluntary particulars but the application was dismissed Q Q by Master Levy. It is not permissible for the Defendant to introduce such R R positive facts again, especially since the defence is just a bare denial. S S 18. The Plaintiffs, on the other hand, has not filed evidence to show T T merits of their claim although the amended statement of claim has pleaded a U U V V 由此 - 7 - A A proper cause of action. Since rule 1C does not require on its face reasonable prospect of success to be shown, the Plaintiffs’ failure to show merits is B B understandable. C C 19. Mr. Lam submits that the Plaintiff has had a history of failure to D D comply with court orders, e.g. in failing to attend a mediation briefing before E E Master Lung. I note, however, that despite the Plaintiff’s personal absence the Court proceeded to manage the case and no time was wasted. F F G G 20. I also note that, like the Plaintiffs, the Defendants failed to attend the same CMC and they have not shown any prejudice if the action H H were restored. I I st21. This is the 1 application of its kind when practitioners may not J J be familiar with how rule 1C operates. I err on the side of caution and restore K K the action. This must not be taken to mean that I am satisfied with the way L the case is presented on either side. L M M Stage 3 - Conditions for Restoration N N 22. Mr. Lam has invited me to impose 2 conditions: O O P P (i) That the amended statement of claim be re-amended so that English translation of the Chinese words can be Q Q provided. R R (ii) That the Plaintiff be required to provide security for the Defendants’ costs. S S T T U U V V 由此 - 8 - A A 23. As a matter of law, a set of pleading should be only in one of the official languages: Chan Kong v. Chan Li Chai Medical Factory (Hong B B Kong) Ltd [2009] 2 HKLRD 455; and the English translation of the allegedly C C defamatory words in Chinese should be pleaded: Cheung Kong (Holdings) Ltd v. Chan Wai Yip Albert [2000] 4 HKC 591. The English translation can D D be provided either by re-amendment or certified translation of the article in E E question. I do not see the need to make it a condition for restoration of the action. F F G G 24. In principle, condition (ii) can be imposed. Unfortunately, the affirmation of the Defendants did not propose the amount of security H H required and what stages of the proceedings it should cover. It is not I I appropriate for the Court to guess the amount. J J Conclusion K K L 25. Under Order 25, rule 1C, a plaintiff who seeks restoration of an L action should give good reasons as to why he did not attend the milestone M M event. Absence due to the fault of the solicitor instead of the party may be a N N good reason but the solicitor should explain fully how the fault came about. The plaintiff should also show that he has reasonable prospects of success. O O A defendant who wishes the Court to impose conditions for the restoration P P should propose the conditions. Where payment of security or other conditions are required, details should be given to enable the Court to come Q Q to a fair decision. R R 26. In the present case, I permit the Plaintiff to restore the action. S S No condition will be imposed. T T U U V V 由此 - 9 - A A 27. Since it involved an indulgence granted by the Court, I make an order nisi that the Plaintiffs should bear the costs of and incidental to the B B present application. However, for the reason given in paragraph 17 above, I C C disallow the costs of and incidental to the preparation and use of the second affirmation of Wong Siu Cheung. I find Mr. Lam’s submission to be very D D helpful. I also make an order nisi that there should be certificate for counsel. E E th28. The matter is adjourned to 5 March 2010 for summary F F assessment of costs on paper. The defendants shall file and serve a costs G G th statements by 24 February 2010. The plaintiffs shall file and serve the rdgrounds in opposition by 3 March 2010. H H I I 29. Some practitioners still do not comply with paragraph 8 of PD 14.3 to lodge their costs statements together with their skeleton submissions. J J I can understand this if a hearing involves cross-summonses and K K complicated issues when parties may wish to consider the ruling before L presenting a costs statement for summary assessment or apportionment of L costs. The present case does not belong to this category. It will defeat the M M exercise of summary assessment if a hearing has to be adjourned for several N N weeks for parties to lodge costs statement, grounds in objection and the Court has to refresh his memory of the case. O O P P Q Q R R S S T T U U V V 由此 - 10 - A A 30 Practitioners are thus reminded to comply with paragraph 8 of PD 14.3, especially for hearings before Masters. Failure to comply, thereby B B necessitating a separate hearing for summary assessment, may cause the C C receiving party to be penalized in costs. D D E E F F (Queeny Au-Yeung) G G Registrar, High Court H H I I Ms. M. Kan of Messrs. S.H. Chou & Co. for the Plaintiffs. Mr. Gary C. C. Lam instructed by Tse & Associates for the Defendants.J J K K L L M M N N O O P P Q Q R R S S T T U U V V 由此 - 11 - A A B B C C D D E E F F G G H H I I J J K K L L M M N N O O P P Q Q R R S S T T U U