BAUHINIA CATERING MANAGEMENT CO LTD v. HEUNG SAI KIT AND OTHERS

DCCJ5561/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5561 OF 2006

D E C I S I O N

1.  I shall allow the plaintiff’s summons of 16 December 2008 in the terms set out in the summons.  At the hearing, the parties argued on the costs of the amendment.  It is clear that the defendants do not object to the plaintiff’s summons of 16 December 2008 that the plaintiff asked for the withdrawal of the earlier summons of 4 August 2007 and further asked for leave to amend the writ of summons and the statement of claim issued on 9 November 2006.

2.  I shall not repeat the history of the proceedings up to the plaintiff’s summons to amend the writ of summons of 16 December 2008.  They are set out very clearly in the affidavits and the exhibits filed by the parties and also in the skeleton arguments of Miss Gwilt and Mr Kwok.

3.  At the hearing today, the defence counsel, Mr Kwok, made it plain that the defendants are not opposing the amendment of the writ of summons and the statement of claim itself.  In fact, that was the position on 30 January 2009 when the parties appeared before Master Lai.  The hearing today was fixed, intended as a costs argument hearing.

4.  Mr Kwok submitted today that by applying for the amendment of the writ of summons, the three defendants are in fact no longer sued in their personal capacity and therefore they should have their costs from the time the writ was served on them.  The amended writ being a different action against the sole defendant i.e. the three defendants in their own capacity and also in the capacity representing the Chung Chi Staff Club members.

5.  Counsel for the plaintiff, Miss Gwilt, disagreed with the defence submission.  The plaintiff would agree to the costs of the amendment of the writ and the statement of claim and costs occasioned by the amendment.

6.  After hearing the background of the 4th defendant in the original writ, Chung Chi Staff Club, it is clear that the club is and was an unincorporated body.  Whether it is run with a constitution or memorandum and article of association to govern its activities has not been disclosed in Mr Heung Sai-kit’s affirmation of 23 January 2009.  It is admitted to be an unregistered body, it is not registered under any legislation in Hong Kong and certainly not under the Societies Ordinance nor, presumably, registered as a business.

7.  For this reason, there are obvious difficulties faced by the plaintiff when the plaintiff decided to take the Chung Chi College Staff Club to court for business dealings it had with the club.  What it did in November 2006 was to sue the three persons who signed the agreement and who had dealings with the plaintiff in their capacity as the responsible persons of the club, and naming also the club as the 4th defendant.

8.  What the plaintiff failed to do then was to name the 1st, 2nd and 3rd defendants as representatives of the club in a representative action under Order 15, Rule 12 of the Hong Kong Civil Procedure 2009.  The plaintiff is now rectifying that mistake by applying for the amendment.

9.  On 30 November 2006, the defendants, including the three persons, D1, 2 and 3, and the club, acknowledged service of the writ together, they were represented by the same firm of solicitor.  To date, no defence has been filed to the statement of claim which was filed and served together with the writ of summons.  It is apparent from the statement of claim filed and served that the 1st to the 3rd defendants were sued as responsible persons of the 4th defendant.  The amendment the plaintiff now seeks also illustrated the same, as only the description of the three persons had been amended throughout the statement of claim.

10.  It is therefore impossible for the three defendants not to know that they were sued on behalf of the club rather than in their own capacity in substance.  The amendment can be described as a technical one, because the 4th defendant is an unincorporated, unregistered body.

11.  For the aforesaid reason, I find the plaintiff’s amendment had not radically changed the substance of the claim.  The three defendants knew that the plaintiff was suing them as responsible persons of the club.  The description itself referred to them being sued on their own behalf and on behalf of all members of the club.  The amendment had replaced the persons sued as 1st to 3rd defendants and the 4th defendant.  The description made it plain, the issue of the claim in the statement of claim had not been amended.

12.  I disagree with Mr Kwok’s submission that the three defendants sued on their own capacity had been abandoned.  In substance and form, they are still sued on their own behalves and on behalf of the members of the club.  For that reason, I do not think this hearing was called for.  It could have been disposed of before Master Lai on 30 January.

13.  I grant costs to the defendants i.e. costs of and occasioned by the amendment up to the Master hearing on 30 January 2009.  As for the costs of today, the plaintiff will have the costs to be borne by the defendants, to be taxed if not agreed, with certificate for counsel.  I am not going to order costs on a higher scale because the mistake did come from the plaintiff originally, and it remains the plaintiff’s application.  The delay the plaintiff had taken to proceed with this action also did not assist.