DENNIS KWOK HON MING v. POON SUI CHEONG ALBERT AND OTHERS

HCMP 1526/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1526 OF 2013

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MISCELLANEOUS PROCEEDINGS NO 1527 OF 2013

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MISCELLANEOUS PROCEEDINGS NO 1528 OF 2013

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(Consolidated pursuant to the Order of the Honourable Mr Justice Harris dated 27 January 2015)

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R U L I N G

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1.  The parties have, by consent summons, approved today, agreed that as to the costs of the Companies’ summons issued on 12 September 2017, the costs incurred after 12 September 2017 should be payable by the Petitioner to the Companies, to be taxed if not agreed.

2.  In dispute is the costs incurred previously.  It seems to me that the responsibility for those costs depends on whether the Companies’ summons was reasonably taken out on 12 September 2017, or was premature. Although the Companies’ summons in original form, and as amended on 26 October, is worded generally as a request for the return of the Companies’ documents, it is supported by the 1st affirmation of Mr Solomon Tseng, which specifically requests an order be made in compliance with paragraph 5 of my order of 21 February 2017.  That order was for delivery up of documents by the Petitioner to the Companies after issue of the final valuation report.

3.  By way of chronology, the Valuers were not appointed until 15 March 2017, and thereafter, directions were made for them to make a report, and then for there to be a question and answer session.  It was common ground that the report would not be final before the completion of the question and answer session.  There were also directions made for the parties to make applications for any further expert evidence within 14 days after the completion of the question and answer session. 

4.  The Valuer’s question and answer session was not complete until 15 August 2017.  On 14 August, the Companies requested the Petitioner to comply with the order for discovery by 18 August.  On 18 August, the Petitioner responded to say that further supplemental reports would be sought from the Valuer, and that the application would be made pursuant to the court’s directions.  It seems to me that at that time, it is at least arguable that the valuation process was not complete. 

5.  The Petitioner thereafter took out an application for a supplemental valuation report.  As it happens, that application was dismissed on 26 October 2017.  However, it seems to me that the position between 18 August 2017 and 12 September 2017 was that it was at least arguable that the valuation process by the Valuer appointed by the court in March was not yet complete. 

6.  In the circumstances, I take the view that the Companies’ application for compliance with paragraph 5 of the 22 February 2017 order was premature when made on 12 September 2017.  Accordingly, I order that with respect to costs in respect of the Companies’ summons before 12 September 2017, there should be no order as to costs. 

7.  On the amended inter partes summons, which was refiled on 26 October 2017, as to paragraph 2, (without prejudice to paragraph 4 of the consent order made on 14 November 2017 pursuant to the consent summons filed on 10 November 2017) there be no order as to costs, and paragraph 1 be dismissed. 

8.  I do not disturb in any way the consent order that is made.  That is recorded. Without prejudice to that, the balance of the costs before 12 September 2017 should be subject to no order as to costs.