KRISTEN LEE also known as LEE MAN TUEN TOBBY v. SANTA FE TRANSPORT INTERNATIONAL LTD

DCCJ 1904/2016

[2020] HKDC 79

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1904 OF 2016

---------------------------

---------------------------

--------------------

DECISION

--------------------

1.  I now deal with the defendant’s application to strike out the plaintiff’s defence to counterclaim and to enter judgment. The application is made by way of an affirmation of Ms Emily Lam, a staff member of the defendant.

2.  According to the defendant’s affirmation of service, Ms Lam’s affirmation, among other documents, were sent to the plaintiff’s two last known addresses in Wanchai and Happy Valley. 

3.  I am satisfied that reasonable steps have been taken by the defendant to bring to the plaintiff’s notice of the present application, which I have heard in the plaintiff’s absence.

The basis of the defendant’s application

4.  The crux of the basis of the defendant’s application is that the plaintiff has no intention to defend the counterclaim, as is made clear by a pattern of procrastinating and evasive conduct on her part throughout these proceedings.  This includes, most recently, her failure to appear at the pre-trial review on 5 December 2019 and today’s adjourned pre-trial review.

5.  As a result of her absence, I have just now granted an order that her claim be provisionally struck out pursuant to Order 25, rule 4(1) of the Rules of the District Court.

6.  The defendant now says that her defence to counterclaim should also be struck out so that the defendant can enter judgment on it. 

Discussion

7.  Having considered the materials before me, in my view, there is a strong inference that can be drawn that the plaintiff no longer intends to defend the counterclaim and to attend the trial fixed for 19 February 2020, with a total of 5 days reserved.

8.  Notwithstanding that, I am not prepared to strike out her defence to counterclaim today. However, applying Aqua-Leisure Industries Inc v Aqua Splash Ltd HCA 18928/1998, 14 May 1999, I shall exercise my case management power, analogous to that set out in Order 25, rule 9(6), to request the plaintiff to give the following information to the court and the defendant – Does she intend to defend the counterclaim? 

9.  If the plaintiff fails to provide such information, her defence to counterclaim shall automatically be struck out and the defendant may enter judgment.  In that scenario, as the plaintiff’s claim has been provisionally struck out, the 5-day trial fixed for next month will be dispensed with.

10.  My reasons are as follows.

11.  The materials before me strongly suggest that the plaintiff no longer intends to pursue her claim or defend the counterclaim.

12.  Her last appearance, through her former solicitors, Messrs A M Mui & Kwan, was at the last case management conference on 30 July 2019.  At that CMC, master gave leave to set down the action for trial and fixed the pre-trial review date and the trial dates.

13.  Subsequently, on 24 September 2019, the Council of the Law Society resolved to intervene the practice of A M Mui & Kwan by exercising the powers in Schedule 2 to the Legal Practitioners Ordinance, Cap 159, pursuant to sections 26A(1)(a)(i), 26A(1)(a)(ii) and 26A(1)(c).  For that purpose, Messrs Chui & Lau were appointed as its intervention agent.

14.  By letter dated 4 October 2019, Chui & Lau informed the plaintiff of the intervention and asked her to appoint new solicitors and collect the file from them.  There has been no response from the plaintiff.

15.  At the first pre-trial review, the plaintiff did not turn up.  Nor did anyone from A M Mui & Kwan.  Chui & Lau had previously informed the defendant that they would not attend either.  As intervention agent, they have no authority to act in the action.

16.  At that hearing, I gave a number of directions, including adjourning it to today for a second pre-trial review.  I also directed as follows:-

“If the Plaintiff fails to appear in the adjourned Pre-Trial Review hearing, the court shall, if it considers appropriate, exercise its power under Order 25, Rule 4 of the Rules of the District Court to provisionally strike out her claim; and, further, may exercise such case management power as it sees fit in relation to the Defendant’s Counterclaim, including but not limited to striking out the Plaintiff’s Defence to Counterclaim and enter judgement in favor of the Defendant if the court is satisfied that the Plaintiff has no intention to defend the Counterclaim.”

17.  At today’s hearing, the plaintiff is absent.  I have acceded to the defendant’s application taken out pursuant to Order 67, rule 5 and made an order declaring that A M Mui & Kwan had ceased to be the plaintiff’s solicitor, on the ground that the practice of the firm had been intervened under the Legal Practitioners Ordinance and had effectively come to an end: Tang Siu Nam v Tang Chi Man [2019] 4 HKLRD 312, [2019] HKDC 1099 at para 24, citing Sheikh v Law Society [2007] 3 AII ER 183 at para 110.  Unlike an application under Order 67, rule 6, upon the making of the order, A M Mui & Kwan immediately came off the record as the plaintiff’s solicitor.

18.  The above chronology demonstrates a number of things. 

19.  First, the date of the first pre-trial review was fixed when the plaintiff was represented by A M Mui & Kwan.  Hence it is reasonable to expect that the plaintiff ought to have known of the pre-trial review date.  Furthermore, she should also have received Chui & Lau’s letter in October 2019 informing her of the intervention.  At that point, it was up to her to take proper steps to pursue the present claim and defend the counterclaim, if she so wished.  Yet, she failed to attend the first pre-trial review.

20.  I pause here to note that search records from the Companies Registry reveal that the plaintiff and Mr Mui Moosdeen Azmat, the sole proprietor of A M Mui & Kwan, are in fact co-directors of a Hong Kong limited company.  Apart from that, however, there is no further objective evidence informing us of the relationship between the plaintiff and A M Mui & Kwan. 

21.  Second, in the last order served on her by Chui & Lau as directed by the court, it was made clear that her claim and defence to counterclaim might face the prospect of striking out if she did not attend the second pre-trial review today.  Yet, she chose not to attend.

22.  Such conduct is entirely inconsistent with what a reasonable litigant would do in the circumstances and appears to be more consistent with a lack of intention to further pursue this case.

23.  In such a situation, the court needs to consider its case management options and should proactively strive to take such steps to achieve the goal of having the proceedings concluded cost-effectively and efficiently, while bearing in mind the aim is to secure the just resolution of disputes in accordance with the substantive rights of the parties: Order 1A, rules 1 and 2.

24.  Here, the plaintiff’s claim has been provisionally struck out.  That leaves the defendant’s counterclaim to be the only outstanding matter.  One option is to follow the existing timetable and require the defendant to prove its case in support of the counterclaim at trial.  It is expected that three witnesses will be called on the defendant’s behalf.

25.  The case turns on factual disputes over a contract for the provision of relocation service by the defendant to the plaintiff.  The defendant’s case is, on its own, prima facie viable.  In the absence of any opposition from the plaintiff at the trial, it can realistically be expected that the defendant is likely to make out its case on the counterclaim.

26.  To pursue that option, time and costs will have to be spent on the preparation of the trial and the trial itself, at which the plaintiff is not expected to turn up. 

27.  On the other hand, I do not accept the defendant’s suggestion that the defence can simply be struck out here and now.  There does not appear to be any proper jurisdictional basis for that approach.

28.  The alternative option is the one that I have arrived at.  The plaintiff should be given a final opportunity to confirm to the court whether she intends to defend the counterclaim or not.  If she fails to do so, she must be taken to have abandoned the defence.  In that case, there is no reason why the defendant should still be required to spend the time and incur the costs to prove its case. (I note in this regard that no declaratory relief is sought by the defendant.)  Her defence should be struck out and the defendant should proceed to enter judgment against her.  Thus unnecessary costs can be saved and the dates reserved for the trial can be vacated, freed up and made better use of by the court, eg on other cases.

29.  Order 25, rule 9(6) provides:-

“If the Court at the determination of the case management summons requires a party to the action or his solicitor or counsel to give any information or produce any document and that information or document is not given or produced, then, subject to paragraph (7) below, the Court may –

(a) …

(b) if it appears to the Court to be just so to do –

(i) order the whole or any part of the pleadings of the party concerned to be struck out; or …”

30.  I acknowledge that the rule applies to the determination of case management summonses only, not pre-trial reviews.  As such, it does not squarely cover the present situation.  However, there is no immediately apparent reason why such power should only be exercisable at a CMS hearing, but not at a pre-trial review.  Technically, I can adjourn today’s pre-trial review to a CMS hearing so that I can exercise the express power under Order 25, rule 9(6) on the next occasion.  But that would be a wholly artificial and tortuous exercise.  I take the view that within my case management options, I am entitled to exercise an analogous power similar to that rule in today’s pre-trial review.

31.  In summary, in light of the strong inference that the plaintiff no longer wishes to take part in this action and the counterclaim, it is proper and in line with the underlying objectives of the civil procedure rules that the plaintiff be compelled to make clear her stance to the court, failing which, she would face judgment in the full sum sought by the defendant on the counterclaim.

32.  In Aqua-Leisure, the defendant’s solicitors had ceased to act less than one month before a 5-day trial, which involved overseas witnesses.  The defendant failed to attend two hearings of the summons for directions.  Keith J’s remark at para 8 is equally applicable to the present case:-

“As it is, I have decided that I must take a robust view of the case. Since the Defendant is not even prepared to tell me that it proposes to defend the case, I can only assume that it is proposing not to do so. In those circumstances, I see no reason why the Plaintiffs should be required to go to the trouble and expense of proving a case which is not to be defended.”

33.  In our case, it would equally be a proportionate measure to take in the circumstances, reflecting the proper balance to be struck in this sort of case (ie where even though a defence was filed, a defendant has since then “disappeared”).  It is now up to the plaintiff to decide whether to allow the counterclaim to be awarded in full.  As the trial is going to be held shortly with a long intervening holiday ahead, I shall have to allow only a short period for the plaintiff to respond.

Order

34.  I order that the plaintiff do inform the court and the defendant in writing whether she intends to defend the counterclaim.  Unless she does so within 3 days of service of this order, her defence to counterclaim be struck out, judgment be entered on the counterclaim with costs to the defendant, and the trial dates be vacated. I also direct that the defendant do file an affidavit of service in relation to today’s order as soon as practicable and in any event before judgment is entered (if applicable).

[Submissions on costs]

35.  I make the following order on costs:-

(1) Costs of the pre-trial review on 5 December 2019 be in the cause; and

(2) Costs of the cease to act summons, the application to strike out the defence to counterclaim and today’s hearing (save for the time spent on the defendant’s summons regarding witness statement) be to the defendant, summarily assessed in the sum of $31,000, payable by the plaintiff on or before 31 January 2020.