NATAMON PROTPAKORN v. CITIBANK, N.A.

CACV 394/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 394 OF 2005

(ON APPEAL FROM HCA NO. 190 OF 2005)

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J U D G M E N T

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Hon Cheung JA (giving judgment of the court) :

1. Deputy High Court Judge Muttrie, pursuant to an application by the defendant, struck out the statement of claim of the plaintiff.  There was no order made in respect of the action itself.  The plaintiff appealed.

2. Shortly before the appeal, the plaintiff lodged a written submission stating that it would not proceed with the appeal but would instead seek leave to amend the statement of claim.  A draft amendment was enclosed. 

3. The defendant by its written submission opposed the amendment to be dealt with by this Court and submitted that it should be dealt with by the Court of First Instance.

4. The parties had at the meantime corresponded on how the proposed amendment should be dealt with.  In its further written submission the plaintiff stated that the terms proposed by the defendant on the amendment were not acceptable and would ask this Court to make an order dismissing the appeal but without prejudice to its right to amend the statement of claim.

5. At the hearing of this appeal, counsel for the plaintiff, Mr. Kenneth Chow, appearing together with Mr. Timothy Wong asked this Court to deal with the leave application to amend the statement of claim.  After the Court stated that it was not inclined to hear the application, Mr. Chow agreed that the matter should be dealt with by the court below.  Eventually the parties agreed to the following order proposed by the Court :

‘ Upon the parties agreeing that the plaintiff be at liberty to apply for leave to amend the statement of claim at the Court of First Instance, it is ordered that the appeal be dismissed with costs.’

Accordingly an order was made by this court.

6. Mr. Godfrey Lam, counsel for the defendant, asked for the costs to be taxed on a higher scale.  We considered that party and party taxation would be appropriate and made an order accordingly.