KINGFIELD INVESTMENT DEVELOPMENT LTD v. PAKCO PROPERTY SERVICES LTD AND ANOTHER

HCA 1536/2016

[2023] HKCFI 571

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1536 OF 2016

--------------------------

(by original action)

(by counterclaim)

--------------------------

--------------------------

DECISION

--------------------------

THE APPLICATION

1.  This is the plaintiff (by original action) (“Kingfield”)’s application[1] for leave to file and serve two affirmations (of Mr Cheung Lin Chuen (“Mr Cheung”) and Mr Chan Wing Wai (“Mr Chan”) respectively) in opposition to the application for mandatory injunction made by the 1^st defendant (by original action) (“Pakco”) and the 2^nd defendant (by original action) (“Ng”).

BACKGROUND

2.  On 6 December 2022, Ng and Pakco took out a summons (“the Injunction Summons”) and applied for interlocutory mandatory injunction against Kingfield. The Injunction Summons was supported by the 8^th Affirmation of Chan Keung which was filed on the same day.

3.  The call-over hearing of the Injunction Summons was initially fixed to be heard on 23 December 2022.

4.  By a Consent Summons filed on 22 December 2022 (“the Consent Summons”), parties sought to vacate the said call-over hearing, and to obtain usual directions for the disposal of the Injunction Summons.

5.  The said Consent Summons was approved by this Court on 22 December 2022, whereby it was ordered, inter alia, that:

(1)  The Injunction Summons be adjourned to a date to be fixed for argument with 3 hours reserved;

(2)  Kingfield do file and serve its affirmation in opposition on or before 12 January 2023;

(3)  Pakco and Ng be at liberty to file and serve affirmation in reply within 14 days thereafter.

(collectively, “the Directions by Consent”)

6.  Kingfield did not file any affirmation in opposition by the deadline of 12 January 2023.

7.  According to the Court’s record, Messrs. H. M. Hui & Co (solicitors acting for Pakco and Ng) informed Messrs. T C Wong & Co (solicitors acting for Kingfield) by letter dated 16 January 2023 that they would attend the Listing Office on 19 January 2023 for the purpose of fixing the substantive hearing date of the Injunction Summons.

8.  On 19 January 2023, the substantive hearing of the Injunction Summons was fixed to be heard on 27 February 2023 (“the Substantive Hearing Date”) with the agreement of both representatives from the said solicitors’ firms who were present at the Listing Office.

9.  On 16 February 2023, Kingfield took out a summons (“the Leave Summons”) for leave to file and serve two affirmations in opposition to the Injunction Summons, which is before the Court today – 6 days before the Substantive Hearing Date.

10.  The affirmation in support of the Leave Summons (2^nd Affirmation of Wong Ting Chun (“Mr Wong”)) was only filed by Kingfield on 20 February 2023.

DISCUSSION

11.  Mr Wong, in his 2^nd Affirmation, explained in support of the Leave Summons as follows:

(1)  Upon receipt of the Injunction Summons in early December 2022, his firm contacted Kingfield for taking instructions;

(2)  With the assistance of Mr Cheung, his firm got in touch with Mr Chan;

(3)  Mr Chan has taken quite a lot of time to retrieve some relevant documents;

(4)  It has also taken him more time to agree to providing an affidavit in support of Kingfield’s case;

(5)  Mr Wong first met Mr Chan on 13 January 2023 for taking instructions in relation to his affirmation and only on that day did he receive a voluminous amount of WhatsApp communication and other documents which he and his firm had to go through;

(6)  On 16 February 2023, Mr Wong met Mr Chan again for taking further instructions and endorsement of his affirmation.

12.  Relying on the above circumstances, Mr Wong stated that the delay was due to:

(1)  The time it took for Mr Cheung to contact Mr Chan, and for Mr Chan to agree to provide an affidavit;

(2)  The amount and nature of the materials, which required time to understand with the assistance of Mr Chan;

(3)  The fact that there were two major intervening holiday periods.

13.  I have no doubt that the Leave Summons should be dismissed, for the following reasons:

(1)  Kingfield was supposed to file and serve its affirmation(s) in opposition by 12 January 2023. This deadline was fixed by consent. If Kingfield was unable to comply with the Directions by Consent by reason of matters which were unexpected when the Consent Summons was signed, it was up to Kingfield to take out a summons for extension of time. However, Kingfield had all along failed to do so, until 16 February 2023;

(2)  Neither did Kingfield explain why it did not take out the Leave Summons earlier, but had to wait until 16 February 2023;

(3)  While Mr Wong said that it had taken some time for Mr Chan to agree to give an affirmation for Kingfield and that he only first met Mr Chan on 13 January 2023 (i.e. after the deadline for the filing and service of its affirmation in opposition of 12 January 2023), he had failed to inform the Court the date when Mr Chan acceded to Kingfield’s request. The Court is therefore unable to say whether such a late meeting was caused by something out of Kingfield’s control;

(4)  In any event, even if the late meeting with Mr Chan was caused by a factor out of Kingfield’s control, there was no explanation as to why Kingfield did not apply for extension of time there and then, when apparently it knew that it could not meet the deadline of 12 January 2023;

(5)  Further, there is no question that Mr Cheung has all along been willing to make an affirmation in support of Kingfield’s case because he is the sole director and sole shareholder of Kingfield. However, Mr Wong has not explained in his affirmation why Kingfield could not file and serve Mr Cheung’s affirmation earlier;

(6)  If the Court were to grant leave to Kingfield, the Substantive Hearing Date has to be re-fixed because, as a matter of fairness, Pakco and Ng should be given 14 days to file and serve their affirmation in reply pursuant to the Directions by Consent. In my view, it is highly undesirable to vacate and re-fix the substantive hearing, because Pakco and Ng should be entitled to have the Injunction Summons heard as early as possible, particularly when the Substantive Hearing Date has been fixed by consent from both sides;

(7)  Further, it will be against the underlying objectives of the Rules of the High Court (to ensure that the resources of the Court are distributed fairly and to ensure that a case is dealt with as expeditiously as is reasonably practicable) if this Court allows the vacation and re-fixing of a court hearing without sufficient grounds.

(8)  The strongest argument that Kingfield may have is that Mr Chan’s evidence is both pertinent and relevant to the Injunction Summons. However, Kingfield only has itself to blame for not being able to rely on the affirmation proposed to be filed;

(9)  Ms Cheung further submitted that the likely prejudice caused to Pakco and Ng will be “an issue of adjourning the 27 February hearing, with attendant costs consequences which [Kingfield] accepts”. Insofar as it is suggested that the only prejudice which Pakco and Ng would suffer is costs, I do not agree. As aforesaid, another prejudice which they would suffer is the delay in the resolution of the Injunction Summons.

DISPOSITION

14.  For reasons of the aforesaid, the Leave Summons is hereby dismissed.

COSTS

15.  Costs should follow the event.

16.  The costs of Pakco and Ng of the Leave Summons should be borne by Kingfield. Such costs are summarily assessed at $35,000 pursuant to Order 62 rule 9A(1)(a) of the Rules of the High Court, and shall be payable on or before 7 March 2023.