WOO WAI MAN v. METRO ALLIANCE LTD

HCA1965/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1965 OF 2007

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JUDGMENT

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1. This is an application by the plaintiff to withdraw the summons filed on 2 November 2007 seeking summary judgment against the defendant on an Order 14 application. 

2. The reason why the plaintiff seeks to withdraw the summons is because of the evidence filed by the defendant in the affirmation of Lo Yui Kong.  The plaintiff recognizes that triable issues are shown and that the plaintiff would not succeed in the summons for summary judgment in the light of that evidence.  Hence the application to withdraw the summons. 

3. Mr Ho has said all he can in support of the application for an order that costs of the summons filed on 2 November 2007 be costs in the cause.  He relies principally on the change in circumstances from the time that the letter dated 20 August 2007 was sent from the defendant’s solicitors to the plaintiff’s solicitors.  That was in response to the letter of demand dated 20 August 2007. 

4. I do not see any change in circumstances.  The letter dated 20 August 2007 made it plain that the defendant was taking the point that the plaintiff’s packaging was not new.  It had no individual characters.  It was not different from what was commonly used in the trade.  The plaintiff, instead of investigating what was commonly used in the trade, in my view, prematurely issued the summons for summary judgment.

5. As Mr Chan, for the defendant, rightly points out, the plaintiff seeks to withdraw the summons.  Costs consequences do follow. 

6. It seems to me that it is only right that leave be granted to the plaintiff to withdraw the summons but that the costs of and occasioned by the withdrawal to be costs to the defendant in any event.  I so order.