MASS OCEAN INTERNATIONAL LTD v. TRINITY HOLDINGS (HONG KONG) LTD formerly known as TREASURE DAY INC LTD AND OTHERS

HCA 691/2015,
HCA 694/2015,
HCA 1295/2015,
HCA 1849/2015 &
HCA 1850/2015

[2019] HKCFI 2323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 691 OF 2015

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 694 OF 2015

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1295 OF 2015

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1849 OF 2015

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1850 OF 2015

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D E C I S I O N

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Background

1.  These 5 actions concern land disputes.  Before me is a consent summons for consolidation (“the Consent Summons”) for approval.  I adopt the abbreviations in the parties’ Joint Memorandum of Directions.

2.  There is a common background to the 5 actions.  Mass Ocean (represented by Haldanes) is the registered owner of all the subject lands in the 5 actions.  It tried to evict occupants on those lands.  For that purpose, it engaged a Ms Wendy Chan to assist in recovering possession.  Ms Wendy Chan was and is the director and shareholder of one MUL and its nominee company, Fortune Gain.

3.  Mass Ocean instituted the 691 Action and 694 Action on 30 March 2015 against the occupants of the 691 Land and 694 Land.  From the defences filed, there are 2 categories of defendants occupying distinct portions of the subject lands:

(i)     Alleged squatters (Trinity Holdings in the 691 Action and Li Mei Sing in the 694 Action), who are represented by TYL; and

(ii)     Persons claiming under tenancy agreements allegedly granted by Mass Ocean.  The tenants are MUL and Fortune Gain, and their camp of sub-tenants/licensees (“the MUL Camp”). They are all represented by SWL.

4.  Despite being defendants to those 2 Actions, MUL and Fortune Gain commenced the 1295, 1849 and 1850 Actions against Mass Ocean and the Mass Ocean Camp (“the TA Actions”).  The tenancy agreements that the MUL Camp rely on in the 1849 and 1850 Actions overlap those in the counterclaims of the 691 Action and 694 Action.  The 1295 Action concerns different pieces of land.

5.  Mass Ocean denies the existence of those tenancy agreements.  It asserts that there are registered leases granted to the Mass Ocean Camp (“the Purported Leases”). Since the tenancy agreements in respect of the MUL Camp were not registered, they do not bind Mass Ocean and do not have priority over the Purported Leases. 

6.  Further, Mass Ocean denies the authority of the person (Yu Kin Cheung) purportedly entering into the tenancy agreements on its behalf. 

7.  In reply, the MUL Camp asserts that the Purported Leases were sham leases to defeat MUL Camp’s rights as tenants.  Mass Ocean and its Camp were not bona fide purchasers for value without notice.  Those Purported Leases should be declared void.

8.  In the TA Actions, Mass Ocean instituted third party proceedings against its former solicitors (“TPs”).  It is said that TPs acted without authority and/or were in breach of fiduciary duty in purportedly preparing MUL Camp’s tenancy agreements or attesting on behalf of Mass Ocean.  TPs (represented by HW) deny and rely on a course of conduct over a period of years to show that they had authority from Mass Ocean.

Issues and the parties’ respective stance

9.  On 7 March 2019, the parties in all 5 Actions entered into the Consent Summons.  In gist, the proposals were for:

(1)     The TA Actions to be consolidated so that they will continue on their own, with filing of consolidated pleadings (“the proposed consolidated action”);

(2)     The adverse possession issues in the 691 and 694 Actions shall be severed from the rest of the matters and continue on their own as “AP Actions”.  The rest of the matters shall be consolidated with the proposed consolidated action, following which MUL and its Camp shall no longer be parties to the 691 Action and 694 Action.

(3)     All previous pleadings concerning the TA Actions and the severed parts of the 691 and 694 Actions shall be expunged, without prejudice to the parties’ respective underlying claims.

These in fact form the issues in the present case.

10.  A Master was persuaded to grant a consolidation order on 8 March 2019 in the 691 Action alone upon the undertaking of SWL to file and serve a similar summons for consolidation in the other 4 Actions.  Before the order was sealed, Master H Au-Yeung raised various requisitions pertaining to the appropriateness of consolidation, the mode of “consolidation”, the need for amendment to pleadings and the power of the court to order severance of causes of action. He also directed the parties to consider whether it would be better to have the Actions managed and tried before the same judge.  The Consent Summons eventually landed before this court.

11.  At this hearing, the parties’ respective stance on the Consent Summons is as follows:

(1)     The MUL Camp, represented by Mr Kelvin Liu, maintains the “consolidation proposal” in the Consent Summons although he no longer insists on expunging the pleadings.

(2)     The Mass Ocean Camp, represented by Ms Verna Lui, accepts that it is bound by the previous legal team’s consent to the Consent Summons.  The new team suggests what has been termed “a discontinuance and consolidation proposal”, which means that those parts of the pleadings already covered by the TA Actions should be omitted from the AP Actions.  She objects to the existing pleadings being expunged and the filing of consolidated pleadings.  She suggests that the 5 Actions be heard together by the same judge as the background facts are essentially the same, save and except certain matters only relating to the AP Actions.

(3)     Trinity Holdings and Li Mei Sing, represented by Mr Erick Shum, suggests that trial of the issues on adverse possession should be severed from the other issues in the 691 and 694 Actions.

(4)     TPs, represented by Mr Withington, prefers an approach which minimizes unnecessary procedural steps and which allows them to participate in the TA Actions.  He does not favour consolidation and severance as they will lead to further procedural steps and costs but do not bring about particular beneficial effect.  He favours discontinuing the TA issues in the 691 Action and 694 Action and have the 5 Actions heard together.  TPs would like to participate in the TA Actions.

12.  All parties agree, though, that the 5 Actions should be heard, one way or another, before the same judge.  I accept that this is a sensible approach, as it will achieve expediency in case management and avoid inconsistency in findings.

Legal principles on consolidation

13.  Order 4, rule 9(1) of the RHC provides as follows:

“(1) Where two or more causes or matters are pending, then, if it appears to the Court—

(a) that some common question of law or fact arises in both or all of them, or

(b) that the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions, or

(c) that for some other reason it is desirable to make an order under this rule,

the Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time, or one immediately after another, or may order any of them to be stayed until after the determination of any other of them.”

14.  Accordingly, the court has to be satisfied that one of limbs 1(a)-(c) has arisen.  The court will then have 4 options: (i) to consolidate the causes or matters; (ii) to order them to be tried at the same time; (iii) to order one to be tried immediately after another; or (iv) to order any of them to be stayed until after the determination of any other of them.

15.  If consolidation is ordered, there should be consequential directions, including directions for filing consolidated pleadings and any exception will be quite rare: Chan Yuet Ying v Wong Choi Hung & ors, HCA 3800/2003, 12 January 2016, DHCJ Marlene Ng (as she then was), §14.  At §15, she stated further,

“… the intermix of consolidated and de-consolidated steps within a consolidated action is, at best, an unhealthy and confusing procedural trap for the unwary. The absence of consolidated pleadings also creates procedural havoc when there are future amendments (as is often the case).”

16.  Yong Li Investments Ltd v Lee Sing Leung Robin [2018] HKCFI 1711, was a recent example where DHCJ Keith Yeung SC (as he then was) applied the principles of consolidation.  The defendant sought consolidation with the filing of consolidated pleadings, whereas the plaintiff requested that the 2 actions be heard by the same judge with the existing sets of pleadings.  DHCJ Yeung found that all the claims and counterclaims in both actions arose from one continuous series of related transactions between the same parties.  The degree of overlap was very substantial.  He agreed that it would save time and costs for both actions to be, one way or another, heard together by the same judge (§§26 and 27 of the decision).  As for pleadings, he took this view:

“29. The starting point is the current state of the pleadings. As things now stand, the parties’ cases are contained in but scattered over 11 documents. They include answers, and further answers, by Robin to requests for further and better particulars of various pleadings. Some of such answers have been withdrawn. There is also (at least) one reply to notice to produce documents.

30.     The facts giving rise to the two actions are not straightforward.   A number of alleged agreements were involved.  Some are said to be oral, some in writing, and some evidenced in writing.  Their existence, and if so their terms, are hotly disputed.  Having one set of pleadings helps to frame the issues.  The preparation of witness statements will also be assisted.  The Court will be able to work with one set of pleadings to understand what the parties’ cases are and how they say the facts evolved chronologically.  Presentation of cases by counsel during trial will also be much easier.  Potentially a lot of time and costs can be saved.”

Legal principles on severance of causes and matters

17.  Order 15, rules 4(1) and 5 provide that:

“4. Joinder of parties

(1) Subject to rule 5(1), two or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the Court or where—

(a) if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions, and

(b) all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions.

…

5. Court may order separate trials, etc.

(1) If claims in respect of two or more causes of action are included by a plaintiff in the same action or by a defendant in a counterclaim, or if two or more plaintiffs or defendants are parties to the same action, and it appears to the Court that the joinder of causes of action or of parties, as the case may be, may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other order as may be expedient.

(2)   If it appears on the application of any party against whom a counterclaim is made that the subject-matter of the counterclaim ought for any reason to be disposed of by a separate action, the Court may order the counterclaim to be struck out or may order it to be tried separately or make such other order as may be expedient.” 

18.  In Jose Miranda Da Costa Junior & Anor v Lorenzo Yih & ors (unreported, HCA156/2010, 13 May 2013, §42) G Lam J held that the court had wide powers to order severance under Order 15, rule 5.  D3 was granted leave to amend its counterclaim and to join additional parties.  Because of D3’s delay and to avoid prejudice to the plaintiffs, G Lam J ordered D3’s counterclaim to be tried separately from the rest of the action. 

Overall analyses of the 5 Actions

19.  Having heard the parties and read the pleadings, I am satisfied that the TA Actions and AP Actions are distinct and severable.  To the credit of the pleaders, the pleadings of each party in fact display consistent patterns that set out the material facts.  The differences among the 5 Actions are not difficult to identify and can be tabulated for ease of court’s reference.

20.  The tenancy agreements for the MUL Camp are each for 10 years (except that the 1850 tenancy agreement is for 8 years and 9 months). They were executed in 2011 (re-executed in 2012), 2012 and 2013 respectively. All of them are renewable for another 10 years.

21.  The common issues in the TA Actions are these:

(1)     The background to Mass Ocean’s endeavours to seek recovery of the lands.

(2)     Wendy Chan will be a common witness whose evidence relates to matters including why she was involved in assisting Mass Ocean in recovery of possession, what attempts she had made, why tenancies were entered into between Mass Ocean and MUL in 2004-6 and why, according to MUL and Fortune Gain, the disputed tenancy agreements had been granted by Mass Ocean in 2012 and 2013.  The issue is whether these matters formed a series of transactions that gave rise to rights to reliefs for the MUL Camp?

(3)     Whether Yu Kin Cheung had been authorized to execute the MUL Camp’s tenancy agreements on behalf of Mass Ocean?

(4)     Whether TPs had been authorized to represent Mass Ocean in respect of the execution of those tenancy agreements?

(5)     Whether the tenancy agreements were valid and binding and have priority over Purported Leases?

(6)     Whether the Purported Leases were sham leases?

(7)     If liability is found against Mass Ocean Camp, to what extent are TPs liable?

22.  In respect of the AP Actions:

(1)     The background information in item (1) of the preceding paragraph has little relevance as each squatter has its/his own route of coming into possession.  Items (2) to (5) are completely unrelated to the AP Actions.

(2)     The lands involved in the AP Actions are different to those in the TA Actions.

(3)     In respect of the TA Actions, the 1295 Action involves a portion of the land that does not form part of the AP Actions.

(4)     Trinity Holdings and Li Mei Sing were and are related. The circumstances by which they came into possession were similar.  The 691 and 694 Lands have been used for car parking and vehicle servicing business.

23.  By the end of the hearing, it is quite clear that the AP Actions should be segregated from the TA Actions.  The third party proceedings depend much on the outcome of the TA Actions and the TPs should take part at the trial of the TA Actions at least on the question of liability.  The TPs have no interest in the AP Actions.

Issue (1) – whether the TA Actions should be consolidated with filing of consolidated pleadings

24.  The TA Actions are related.  The MUL Camp and Mass Ocean Camp each asserts that the other had a scheme to defeat the other party’s interest. There is a substantial degree of overlap in terms of facts, witnesses and legal issues in the 3 Actions.

25.  A true consolidation should have only one set of pleadings.  Mr Kelvin Liu, in support of the consolidation proposal, points out that the pleadings of the 5 Actions are now scattered across 31 sets of documents, including rejoinders, third party pleadings, answers to requests for further and better particulars and voluntary particulars.  Any future amendments will have to be made to multiple documents, causing the type of “procedural havoc” that Deputy Judge M Ng referred to in Chan Yuet Ying.  At the trial, the parties and the trial judge will have to navigate through the voluminous, non-consolidated pleadings.  They may contain material differences that are not obvious. Consolidation may cause more costs to be incurred but Mr Liu submits that the benefits outweigh the costs.

26.  Mr Liu’s suggestions are attractive at first blush.  When there is close factual nexus among 5 Actions, there is no point in deferring the exercise of comparing pleadings to find out the similarities and differences until CMC/trial.  It is certainly more convenient to the trial judge to have one set of consolidated pleadings rather than 31 sets. 

27.  However, this is already the 4th hearing (3 before the Masters) concerning the consolidation issue.  Consolidation will only give rise to more delay and costs.  It should be avoided if there can be other ways to go forward.  I repeat my observations in paragraph 19 above about the regular patterns of pleading and the identifiable differences.  I am also well assisted by, amongst others, a Case Summary prepared by SWL dated 15 August 2019. That Case Summary is laudable in that it already “consolidated” the material facts and issues that the court needs to focus on.  This Case Summary can be revised and re-used.  It is simply not necessary to waste costs on consolidated pleadings.

28.  A further way to assist the court is to designate the 1295 Action as the “leading TA Action”.  The witnesses for the TA Actions should file composite witness statements in the 1295 Action to “consolidate” all the pleaded facts within his knowledge in a chronological and comprehensive way, identifying the parts peculiar to a particular TA Action.  For record purpose, the same witnesses can file short statements in the other 2 TA Actions simply stating eg, “I adopt my witness statement/paragraphs __ of my witness statement filed on ____ in the leading 1295 Action.”

29.  The TA Actions shall be managed and tried by the same judge, at the same time or one after another as directed by the trial judge.  Findings of facts in one TA Action shall bind the parties in the other 2 TA Actions.

30.  Ms Lui and Mr Withington make the “heard together” proposal as an alternative to the consolidation proposal.  They really mean hearing 5 Actions together.  With respect, that will create a lengthy trial in which the squatters will have to attend a trial involving tenancy issues that do not concern them and the TPs will have to attend a trial involving adverse possession issues that do not concern them. 

31.  Further, up to the present, the squatters and the MUL Camp have filed joint pleadings because they were previously represented by Lo, Wong & Tsui. They have now changed their representation to TYL and SWL respectively.  Merely having the 5 Actions heard together without some adjustment to the pleadings in the 691 Action and 694 Action is not workable.  It will embarrass and delay the trial and unjustifiably increase costs. 

32.  Related to the TA Actions are the third party proceedings.  TPs were joined only in 2018 and so the Third Party Actions are still at an early stage.  However, it can be seen from the pleadings that the question of TPs’ liability is closely tied to the merits of the TA Actions.  TPs should be entitled to cross-examine the witnesses concerned. 

33.  Accordingly, the best course is not to consolidate or to have the 5 Actions heard together but for the TA Actions to be heard together but separate from the AP Actions. This should be done by the same trial judge.  TPs shall be at liberty to participate in the TA Actions on the questions of liability, unless the trial judge directs otherwise.

Issue (2) – whether in the 691 and 694 Actions the adverse possession issues shall be severed from the rest of the matters and those matters concerning the tenancy issues shall be consolidated with the TA Actions

34.  Neither Mass Ocean nor the squatters need to rely on the disputed tenancies or registered leases to establish their case.  It is plainly desirable to let the AP Actions continue on their own, severed from the rest of the pleaded issues (TA issues) in the 691 and 694 Actions.

35.  I am satisfied that under Order 4, rule 9 and Order 15, rule 5, the court does have power to consolidate or sever causes and matters. Order 4, rule 9 is not limited to consolidation of one entire action with another.

36.  Master Au-Yeung had some concerns about severance.  He pointed out that in the 691 Action, the background facts of the defence of MUL and Trinity Holdings are closely related (§9 of the DCC).  The same applies to MUL and Li Mei Sing in the 694 Action.  There is also an issue about a vehicular right of way in the 694 Action.

37.  In respect of the 691 Action, Mr Kelvin Liu has since clarified the position in his written submission: 

(1)     §9 of the DCC contains averments relied on by Trinity Holdings as its case on adverse possession.  The MUL Camp does not rely on those averments.

(2)     §11 of the DCC avers that Trinity Holdings is and was a lawful tenant of MUL, who in turn is the lawful tenant of Mass Ocean in respect of the Western Portion of the 691 Land.  MUL’s case is based on a tenancy agreement in respect of the Western Portion of the 691 Land and Trinity Holdings’ case is based on adverse possession of the Eastern Portion of the 691 Land.  Only MUL relies on the averment in §11; Trinity Holdings does not.

(3)     Any sub-tenancy of MUL in respect of the Western Portion is not material to its case for a declaration as to the validity of the 691 tenancy agreement or 1849 tenancy agreement.

(4)     In the premises, there is no material connection between the cases of MUL and Trinity Holdings as they concern different portions of the 691 Land.

(5)     Since late 2018, MUL and Trinity Holdings have had separate legal representation.

38.  In respect of the 694 Action, Mr Kelvin Liu has since clarified the position in his written submission:

(1)     Li Mei Sing’s adverse possession case is in respect of the Green Area of the 694 Land, whereas the vehicular right of way is over the Hatched Area of the 694 Land.

(2)     It is intention of MUL to amend its pleadings in respect of the vehicular right of way (not specifically over the Hatched Area).

(3)     In the premises, there is no material connection between the cases of MUL and Li Mei Sing as they concern different portions of the 694 Land.

(4)     Since late 2018, MUL and Li Mei Sing have had separate legal representation.

39.  I accept the submission.  Severance remains appropriate.  The 691 and 694 Actions will become proceedings among Mass Ocean, Trinity Holdings and Li Mei Sing; and the unnamed occupiers.

40.  With respect to the parts on tenancy issues that will be carved out from the 691 and 694 Actions, it is not necessary to have them consolidated with the TA Actions.  This is because the pleadings of the TA Actions have covered the carved out parts already.  Nor is it necessary to discontinue them as there may be issues of costs. The proper course is to stay that part of the proceedings, without prejudice to the relevant parties making claims/counterclaims in the TA Actions and those parties shall be bound by the findings in the TA Actions.  The costs as regards those carved out parts shall be in the cause of the TA Actions.

41.  After severance, it is not necessary to consolidate 691 Action and 694 Action, since there are different squatters and different pieces of land involved.  Rather, to assist the trial judge, the pleadings should be amended (without consolidation) so as to delete references to the parties (MUL, Eastern Worldwide and Tung Shing), pleaded facts and prayers for relief that do not concern the adverse possession issues. 

42.  The 691 Action will be designated as the “leading AP Action”.  The directions in paragraphs 28 and 29 above shall similarly apply to the AP Actions (after severance). Not much costs will be wasted since Trinity Holdings and Li Mei Sing are related.

43.  It is not necessary for the AP Actions to be heard together with the TA Actions as the issues are separate.

44.  As mentioned in paragraph 10 above, a consolidation order has been made just for the 691 Action.  In view of the analyses in this decision, that order should not be sealed or take effect. 

45.  I take this opportunity to remind practitioners that whenever there is an application for consolidation, a summons should be filed in all the cases proposed to be consolidated.  Under no circumstances should the court be invited to grant a consolidation order in one case first, upon a party’s undertaking to file a similar summons in the other cases afterwards.  The reason is, to say the least, that the court needs to be appraised of the pleadings in all the cases before it can be satisfied that there are common issues of fact or law and decide which of the 4 forms of order to make under Order 4, rule 9.

Issue (3) – expunging pleadings

46.  Pleadings should be expunged if they are filed without authority of the Rules of the High Court or leave of the court, or contain substantially irrelevant materials. 

47.  That is not the position here.  All the past pleadings were validly filed.  Consolidation (if ordered) or severance would not, in themselves, make the filing unjustified.  Mr Kelvin Liu, rightly, does not insist on expunging pleadings.  I make no order accordingly.

Order

48.  I decline to order consolidation and order as follows:

     In relation to HCA 691/2015:

(1)     Mass Ocean’s claim against Trinity Holdings and other occupiers and Trinity Holdings’ counterclaim relating to the Eastern Portion of the 691 Land be severed from the rest of the case and form part of the AP Actions;

(2)     HCA 691/2015 shall be the “leading AP Action”.  The parties shall be bound by the findings made in respect of each of the AP Actions;

(3)     The rest of the case concerning the Western Portion of the 691 Land shall be stayed, without prejudice to the rights of Mass Ocean and MUL to claim, defend and/or counterclaim in the TA Actions. The parties shall be bound by the findings in the TA Actions;

(4)     This court notes that Mass Ocean has filed and served an amended statement of claim to remove references to parties and facts that do not concern the AP Actions, although it was wrong to state that the rest of the action has been “discontinued”.  I give leave to re-amend within 7 days;

(5)     Trinity Holdings do file and serve an amended defence and counterclaim within 14 days from today;

(6)     Mass Ocean do file and serve an amended reply and defence and counterclaim within 14 days thereafter;

(7)     The order of consolidation made on 8 March 2019 shall not be sealed and shall not take effect in the light of this order;

     In relation to HCA 694/2015:

(8)     Mass Ocean’s claim against Li Mei Sing and other occupiers and Li Mei Sing’s counterclaim be severed from the rest of the case and form part of the AP Actions.  The parties shall be bound by the findings made in respect of each of the AP Actions;

(9)     The rest of the case shall be stayed, without prejudice to the rights of Mass Ocean, MUL, Eastern Worldwide and Tung Shing to claim, defend and/or counterclaim in the TA Actions. The parties shall be bound by the findings in the TA Actions;

(10)   This court notes that Mass Ocean has filed and served an amended statement of claim to remove references to parties and facts that do not concern the AP issues although it was wrong to state that the rest of the action has been “discontinued”.  I give leave to re-amend within 7 days;

(11)   Li Mei Sing do file and serve an amended defence (including amendments to the vehicular right of way) and counterclaim within 14 days from today;

(12)   Mass Ocean do file and serve an amended reply and defence to counterclaim within 14 days thereafter;

     In relation to HCA 1295, 1849 and 185/2015:

(13)   These 3 Actions shall form the TA Actions, which shall be heard together;

(14)   HCA 1295/2015 shall be the “leading TA Action”.  The parties shall be bound by the findings made in respect of each of the TA Actions;

(15)   In relation to the third party proceedings, the questions of liability shall be heard together with the TA Actions, save where otherwise directed by the trial judge.  The directions as to trial on quantum shall be left to the trial judge;

     In relation to all 5 Actions,

There shall be no new matters raised in the amended pleadings save as provided for in sub-paragraph (11) above.

(16)   No order for consolidation is made;

(17)   The applications to expunge the existing pleadings be dismissed;

(18)   Save for documents peculiar to a particular Action and court orders, documents (such as timetabling questionnaire, list of documents, summons, affirmations, witness statements) can be filed in the relevant leading action.  A memorandum can be filed in the other related Action(s) stating which documents filed in the leading action a party relies on;

(19)   Within 14 days of the filing of the last set of amended pleadings as provided for above, the parties in the AP Actions and the TA Actions respectively do file and serve lists of documents;

(20)   There shall be inspection of documents within 14 days thereafter;

(21)   Timetabling questionnaires and mediation certificates shall be filed within 14 days of inspection of documents;

(22)   Any party who is unable to comply with any of the above directions shall apply for extension of time within 7 days after the due date for compliance;

(23)   Within 28 days from today, Mass Ocean shall apply for a CMC hearing in respect of the AP Actions and another one in respect of the TA Actions, each with one hour reserved;

(24)   All case management hearings and interlocutory applications in relation to the AP Actions or TA Actions shall be fixed before Master Ho or Au-Yeung J as the docket judge;

(25)   Mass Ocean shall cause the Case Summary dated 15 August 2019 to be re-drafted into 2 summaries, one for the AP Actions and the other for the TA Actions and to include a list of issues for each of them.  The new case summaries shall include a set of colour plans and a list of abbreviations, which shall be used by all the parties from today onwards in all witness statements, affirmations, submissions and all necessary documents to be filed;

(26)   The new case summaries and lists of issues shall be used for every case management hearing and updated when necessary.  The relevant parties shall be bound by those case summaries and lists of issues; and

(27)   A composite order setting out all of these directions shall be made and filed in each of the 5 Actions.

Costs

49.  The parties have made efforts in terms of managing the 5 Actions, which ended up in the Consent Summons.  Ms Lui submits that the AP Actions were first instituted by Mass Ocean.  It was only afterwards that MUL and Fortune Gain saw fit to issue the TA Actions, rather than advance their claims by way of a counterclaim.  It was also MUL Camp’s own decision not to apply for consolidation earlier, or at least before all the pleadings were filed.  She suggests that costs should be borne by the MUL Camp.

50.  On the other hand, Mass Ocean’s stance has slightly departed from the Consent Summons when there was a change in legal team.  This court eventually declined to give a consolidation order and did not adopt the Consent Summons in full. 

51.  MUL, Trinity Holdings and Li Mei Sing asks for costs in the cause.

52.  TPs point out that despite the Actions being commenced in 2015, they were only joined in 2018.  The other parties did not see fit to apply for consolidation at an earlier stage.  Mass Ocean will seek to pass on the costs to the TPs.  TPs submit that irrespective of the outcome, it would be unjust for the TPs to be held liable for costs.

53.  Looking at the application broadly, consolidation is often a difficult case management issue.  The Consent Summons and submissions have helped the court to map the way forward. The mode of “consolidation” will have to be dealt with one way or another, if not at the CMS stage, then at the CMC stage; the sooner the better.  I do not think any party in the present Actions have acted in a culpable way. 

54.  Accordingly, I order:

(1)     That costs of the 691 Action and 694 Action (as severed) together with any costs arising out of the amendments to pleadings, shall be in the cause of the AP Actions. 

(2)     The rest of the 691 and 694 Action shall be costs in the cause of the TA Actions.  

(3)     Costs of the 1295, 1849 and 1850 Actions together with any costs arising out of amendments to pleadings shall be costs in the cause of the TA Actions. 

(4)     Costs as between Mass Ocean and TPs shall be in the cause of the third party proceedings.

55.  I thank Mr Erik Shum, Ms Verna Lui, Mr Kelvin Liu and Mr Withington for their assistance.