CHEN MUHUA (also known as WINKY CHAN) v. LIU YI DONG (also known as LAU KWOK WAH BENJAMIN OR BEN LAU)

HCMP 274/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 274 OF 2017

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D E C I S I O N

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1.  This is the application by the Defendant to strike out the Originating Summons (OS) against him. In my view, the OS is clearly defective in that, contrary to O. 7, r. 3(1), there is no indication of the basis of or the cause of action giving rise to the contribution claim stated therein.

2.  Further, it is plainly inappropriate to make use of the originating summons procedure when the underlying matters are highly complicated and the Plaintiffs’ allegations against the Defendant are going to be hotly disputed.   

3.  There may be substance in the Plaintiffs’ submissions that these matters are intricately related to the unfair preference and misfeasance proceedings (Proceedings) which are to be tried before Mr Justice Harris on 13 December 2017 with 3 days reserved (Trial).  If so, the considerations of duplicity of issues, risk of inconsistent findings and just and expeditious resolution of disputes may come into play. 

4.  On the other hand, the Proceedings were brought in, respectively, July and August 2015.  Mr Justice Harris was aware of the existence of the OS at the time when the hearing for the Trial was fixed in February 2017 (although the OS was not served at that stage). 

5.  The Plaintiffs ask that the hearing of the OS be adjourned to the Trial with the view to applying for the OS to be tried together with the Proceedings.  If the OS is to be tried with the Proceedings, the Trial will inevitably be derailed.  

6.  The Plaintiffs have all along been legally advised, and the Proceedings have been on foot for nearly 2 ½ years.  There needs to be a good reason to justify the course proposed by the Plaintiffs.

7.  I take the view that this court should deal with the present application on its merits.  When the OS is plainly defective, I see no justification to delay the determination of this application and burden the Trial with it.   

8.  For these reasons, I accede to the Defendant’s application to strike out the OS.

9.  For completeness, I should mention that, with the imminence of the trial, it would not be helpful to the Plaintiffs’ cause to order that the OS be continued as a writ action.  It is highly unlikely that the filing of pleadings will be completed by the time of the Trial. 

10.  I shall hear the parties on costs.