XCHRX LI, KO & YAN (a firm) v. CARIPAC LTD.

HCA 18029/1999 and HCA 445/2000

Headnote

Practice and Procedure - order for consolidation - O.4, R.9, RHC, Appeal from order made by Registrar for consolidation of two actions Held, although there was some common questions of fact in both actions, the common questions of fact were not of sufficient importance in proportion to the rest of the issues in one of the actions - Order for consolidation set aside and order made that one action be tried immediately after the other by the same judge.

HCA 18029/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. A18029 OF 1999

______________________

J U D G M E N T

______________________

1. This is an appeal from the order of Mr Registrar C Chan made on 12 January 2001 whereby he ordered that High Court action no. 18029 of 1999 be consolidated with High Court Action no. 445 of 2000. As a result of his order, the two actions have been consolidated.

2. Action no. 18029 is an action by the plaintiff who is a practising accountant and who is also the senior partner of the firm of accountants Li, Ko & Yan, the plaintiff in action no. 445. The defendant in action no. 18029 is also the managing director of Caripac Limited which is the defendant in action no. 445.

3. The claim in action no. 445 relates to fees for accounting services provided by the firm to Caripac Limited. The claims in action no. 18029 relate to a breach of contract whereby the plaintiff agreed to provide services as an accountant and financial expert in respect of the proposed listing in the stock exchange of Hong Kong of a company in the Caripac Group of companies which included Caripac Limited. The claim is for, inter alia, damages for breach of contract alternatively, damages on a quantum meruit basis. The claim in action no. 445 is a simple claim for fees for accounting services rendered to Caripac Limited. The letter dated 11 June 1999 from Pricewaterhouse Coopers to Caripac Limited shows that at one time, Caripac Limited was the company which was being considered for the proposed listing.

4. Although the defence in action no. 445 as presently filed does not raise any issue of fact or law common to the issues in action no. 18029, the affirmation of Benjamin Law Yip Wai affirmed on 13 April 2000 in that action does raise a common question of fact in both actions. He says at para 8 :

"The Defendant herein is a member of the "Caripac Group". Under the Head Agreement, Mr Ko Chi Keung was required to carry out work for the Defendant, including giving financial advice, meeting with professionals, preparing financial analysis, etc. That this was so is confirmed by the Statement of Claim of Mr Ko Chi Keung filed in High Court Action No. 18029 of 1999. As a matter of fact, in respect of those items of work and services which it is accepted were provided to the Defendant (see paragraph 5 above), they were carried out by Mr Ko Chi Keung pursuant to the Head Agreement, and not pursuant to any agreement between the Plaintiff and the Defendant herein. I have been advised by the Defendant's legal advisers and I verily believe that the Plaintiff's claim herein should be subsumed within Mr Ko Chi Keung's personal claim against Mr Andrew Lee, and it is not permissible for Mr Ko Chi Keung to make a claim in respect of the same items of work of services twice (i.e. once in his personal capacity and once as partner of the Plaintiff herein)."

5. These matters have not yet been pleaded in any amended defence but I am satisfied that they will be pleaded when the amended defence is filed. The defendant is waiting for the plaintiff to amend its statement of claim before serving its amended defence and as the plaintiff has indicated that it will amend its statement of claim, but has not yet done so, it seems sensible to wait for the amended statement of claim before amending the defence so as to save costs.

6. Having heard the submissions of both sides, I am satisfied that it is Caripac Limited's case in action no. 445 that the services provided by the firm of accountants were in fact services provided by the plaintiff in action no. 18029 and not by virtue of any separate retainer between the firm and Caripac Limited. And I am also satisfied that it is Caripac Limited's case that the accounting services were required and provided for the proposed listing.

7. In action no. 18029 there are a large number of issues. Some of these, however, include ascertaining the scope of the plaintiff's duties under the agreement sued on and whether or not he performed such duties which, as Caripac Limited will allege, included the services as itemized in the debit note sued on in action no. 445. There are, thus, common questions of fact involved in both actions. However, the issues in action no. 445 are much narrower and the claim is much smaller. In my view, the common questions of fact are not of sufficient importance in proportion to the rest of the issues in action no. 18029. The issues in action no. 18029 are much more extensive and these have been listed in the skeleton submissions on behalf of the plaintiff. For this reason, I do not think that an order for consolidation of both actions should have been made. However, under O. 4; r. 9, RHC, the court has wide powers. It may order consolidation or it may order both actions to be tried at the same time or one immediately after another. This the court can do if it appears to the court either :

“(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 "

In this case, I am of the view that (b) and (c) above are applicable. There are common witnesses in both actions. The principal witnesses in both actions will be Albert Ko, Andrew Lee and Lucia Hui. There will be issues of credibility of witnesses to be considered. It is undesirable that two different judges should be asked to assess the credibility of the same witnesses. This is particularly so where the fees for the accounting services sued upon in action no. 445 do arise from the proposed listing which gave rise to the plaintiff's claim in action no. 18029. The plaintiff there also claims damages on a quantum meruit basis and the trial judge will have to deal with the extent of the work performed by him and also whether this is the same work performed by the firm of accountants in action no. 445. Although the plaintiff in action no. 18029 will face some delay because of this, it seems to me that it is desirable in the interests of justice that both actions be heard by the same judge. There will also be a saving of costs. I note, however, that action no. 18029 is not yet ready for trial as expert evidence still has to be obtained. There is no sufficient reason why the preparation for trial of action no. 445 could not be proceeded with expeditiously. In my judgment, there should not be a consolidation of both actions but there should be an order that action no. 445 be tried immediately after action no. 18029 by the same judge. The appeal is allowed. The order of Mr Registrar C Chan is set aside save that the costs order that he made shall stand. I order that action no. 445 be tried immediately after action no. 18029 by the same judge. Costs of the appeal to be costs in the cause.