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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BETWEEN

百州年投資管理集團有限公司 Plaintiff

and

銀泰百貨(集團)有限公司 1st Defendant
沈國軍 2nd Defendant

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Before: Deputy High Court Judge Wilson Chan in Chambers

Date of Hearing: 17 September 2014
Date of Decision: 17 September 2014

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D E C I S I O N

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1. This is the 1st 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 1st 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 1st defendant payable forthwith and summarily assessed at HK$5,000.

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

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

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

4. Having re‑heard today the applications that were before the Master, I am satisfied that the 1st 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 to1 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 daysto file evidence.

(2) Secondly, the original timetable was ordered by consent. Indeed, the fact that the plaintiff and the 1st defendant had both agreed to that original timetable, including the 24 September2014 hearing date, is crucial in highlighting theunacceptable manner in which the plaintiff has contested the 1st 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 ofits 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 notsomething 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 onlysaid that Michael Chin was “not fit to work”, but he was asked only to give instructions to the plaintiff’s lawyers and notto work. Dr George Ng said, without giving meaningful explanations, that Michael Chin was “not suitable for litigation proceduresfor the next 3-4 months”, but what he had intended “litigation procedures” to mean was decidedly unclear. Dr George Ng’sletter 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 physicalcondition”. The alleged mental condition was only that Michael Chin had developed “depression” due to eye illness, but thereis no evidence of how his mental state has affected his abilities. Dr Alvin Kwok’s letter, like Dr Dylan Chan’s, is unhelpfulas 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 lawyerstell 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 paragraph8 of the 2nd Affirmation of Yan, Sherman Chuek‑ning filed herein on 7 August 2014 that ONC Lawyers had already drafted an affidavit in oppositionto the 1st defendant’s striking out summons.

5. For the reasons stated above, I am satisfied that the 1st 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 2nd Affirmation of Jiang Zhi Xiong filed herein on 6 June 2014, the plaintiff be debarred from filing any affirmation in opposition tothe 1st defendant’s striking out application under its summons filed herein on 6 June 2014. I think 14 days instead of 7 days should bethe 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 losingparty will very likely appeal. To ensure costs-effectiveness and the most expeditious disposal of the matter, given the delay thathas already been caused by the plaintiff, I order that the 1st defendant’s striking out application be heard by a Judge in Chambers, on the earliest possible date to be fixed with an estimatedtime of 3 hours.

8. On the question of costs, in making its adjournment application the plaintiff has acted, in my view, most unreasonably and irresponsiblywithout 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 1st 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 1st defendant, to be paid forthwith and on an indemnity basis. Such costs to be taxed if not agreed.

(Wilson Chan)
Deputy High Court Judge

Mr Yonah Leung, of ONC Lawyers, for the plaintiff

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

2nd defendant was not represented and did not appear