WORLD ASIA CONSULTANTS LTD v. GOLD PLAZA LTD

DCCJ 3590/2018

[2023] HKDC 35

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3590 OF 2018

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

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

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

DECISION

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

Consent Summons for adjournment of trial

1.  Before this Court is a consent summons filed by the Plaintiff’s solicitors on 19 December 2022 to adjourn a 2-day trial of a landlord and tenant dispute scheduled to commence today (with 5 January 2023 reserved) to a date to be fixed.

2.  In gist, the Plaintiff in this action claims for the return of two deposits in the total sum of HK$458,640 paid to the Defendant upon signing and returning a written offer to lease of a commercial premises prepared by the Defendant, who contends that there was already a binding agreement once the offer was accepted and hence the deposits are not refundable, it was the Plaintiff who was in breach of the agreement by failing to take up possession of the premises.  Amongst others, there is a dispute as to whether the Plaintiff’s signed offer to lease had been withdrawn in time before the Defendant accepted the offer.

3.  Before this hearing, the Plaintiff has not filed any supporting affirmation to offer any reason for adjourning the trial.  Soon after the jurisdiction of the present case was seized upon by this Court yesterday, the parties’ handling solicitors were directed to attend a chamber hearing today fixed at 9:30 am (with 1 hour reserved) to explain the reasons for seeking the adjournment first before the trial formally begins, and that the commencement of the trial be adjourned until after the conclusion of the hearing of the Consent Summons.

4.  To properly case manage this action, this Court was required to read sufficiently into the court files to discern the factual background, the procedural history, and the issues in dispute, but without any proper assistance offered by the parties.

5.  Notably, neither the Plaintiff nor the Defendant has lodged with the Court its own opening submission and list of authorities as earlier directed by Deputy Judge Gary C C Lam in the PTR on 14 November 2022. 

6.  Although the Defendant agreed to the adjournment (and it remains so in this hearing as confirmed by Miss Shirley Leung, counsel for the Defendant), the Court retains a wide discretion to decide whether to adjourn, and even if minded to do so, it may impose terms as it thinks expedient in the interest of justice under Order 35 rule 3 of the Rules of District Court (Cap 336H) (“RDC”) : see Elijah Saatori v. Raffles Medical Group (Hong Kong) Ltd (unrep, HCMP3224/2016, 13/09/2017) at [44] and [45].

7.  In the exercise of the discretion, the parties’ agreement to adjourn would at first glance appear to be a weighty factor tilting the scale in favour of adjournment.  In particular, the parties may have relied on the same to conduct their affairs accordingly since the filing of the Consent Summons. Though, it must be emphasised that this would not absolve the Plaintiff’s primary responsibility to promptly inform the Court of the reasons for adjournment in the first place.

8.  Further, this Court cannot force the Plaintiff to proceed with its claim if it does not want to, nor would it appear right or proper for the Defendant to resile from its earlier agreement to adjourn when prima facie it was voluntarily entered into.

9.  But on the other hand, the parties would have to bear the consequences of their own choices made in the conduct of the litigation.  They must not simply assume the Court would just rubber stamp the consent application to adjourn.  Apart from doing justice to the parties by allowing them fair and reasonable opportunities to present their respective cases and evidence for the Court’s adjudication of their substantive dispute, the Court also has a duty inter alia to guard against the precious judicial resources from being dissipated unwarrantably and/or unfairly distributed among the litigants on the court list.  Needless to say, the trial dates being milestone dates are immovable save in the most exceptional circumstances: see Practice Direction 5.2, at [42].

10.  At this hearing, Miss Vincy Siu of Robert Siu & Co, the Plaintiff’s solicitors on record, informed this Court that the adjournment application was taken out not because the parties had been undergoing any negotiation, let alone were close to reach a settlement.  Rather, she said that the Consent Summons was taken out because the Plaintiff had difficulty to arrange its two key witnesses to give evidence at trial (although the exact reasons behind as described in Robert Siu & Co’s letters sent to the Plaintiff’s witnesses (as produced by Miss Siu during the hearing) would appear somewhat different from what was related to the Defendant’s solicitors, which was being put on record in the Defendant’s letter to Robert Siu & Co dated 12 December 2022).  In that letter, the Defendant’s solicitors also requested Robert Siu & Co to prepare an affirmation or explanatory letter to the Court setting out the reasons for seeking the adjournment.

11.  Miss Siu further told this Court that her firm now has no instruction to act for the Plaintiff in this action.  Their last contact with the Plaintiff’s representative was on about 9 December 2022.  In fact, her firm already took out a Summons on 30 December 2022 returnable on 3 February 2023 to apply to cease to act for the Plaintiff.  However, the papers in relation to such application are not before this Court today.  I do not see it appropriate to deal with that application at this hearing, particularly it is ex-parte in nature which may involve the disclosure of confidential and privileged information as exchanged between Robert Siu & Co and their client.  At this moment, before any leave is granted to Robert Siu & Co to cease to act for the Plaintiff, they would remain its solicitors on record.  In any event, as the officers of the Court, both Miss Liu and her principal, i.e. Mr Robert Siu, would have the duty to assist the Court to properly deal with the adjournment application as contained in the Consent Summons.

12.  In the light of the aforesaid, the resultant situation strikes me that if this Court simply accedes to the Plaintiff’s request (despite consented to by the Defendant) to adjourn the trial to another date to be fixed without more, there is a real chance that the present action may be left in limbo after the Plaintiff’s solicitors was subsequently granted leave to cease to act for the Plaintiff, and this would be wholly unsatisfactory.

13.  Taking a balanced view of the present peculiar situation, instead of making a draconian order to refuse granting the adjournment, let the trial commence and then strike out the action straight away pursuant to Order 35 rule 1 of RDC as the Plaintiff would not appear at the trial, this Court decided to give the Plaintiff one last chance by adjourning the trial to another date to be fixed but this must be made subject to the condition that unless the Plaintiff would make an appointment with the Court Registry to have the trial dates re-fixed within the next 42 days, the action shall stand dismissed without further order, and with costs of the action to the Defendant. For this purpose, the Plaintiff’s solicitors would be directed to notify the Plaintiff of this Court’s order immediately after the present hearing.

14.  For completeness, on the materials before this Court, it does not appear to be the case that the Plaintiff cannot be communicated with at all through the addresses and/or fax number as appeared in Robert Siu & Co’s earlier letters sent to their client.   As gathered from Miss Siu’s submissions, it seems that the Plaintiff only chose not to respond to Robert Siu & Co’s request for further instruction in relation to the trial since about 9 December 2022.

15.  In my view, it would be just and fair, and accord with Order 1A underlying objectives for this Court to make case management order of such nature, apart from basing upon the jurisdiction as conferred under Order 35 rule 3.  To make this order would also help disabuse any litigant and/or its legal representative of any misconception that an action can simply be left in the Court file indefinitely, without taking proactive steps to bring the disputed claim to a conclusion either by way of trial, discontinuing it, or otherwise by reaching settlement with the other side to properly dispose of the same in the post CJR regime.

Costs of today’s hearing

16.  Miss Leung submitted that costs of today’s hearing should be paid by the Plaintiff to the Defendant, though she agreed that the Defendant should stick to its earlier agreement that there be no order as to costs of the Consent Summons itself.

17.  Miss Leung drew my attention to the fact that back on 12 December 2022 when the draft Consent Summons was sent to the Defendant’s solicitors for their approval, they already asked the Plaintiff’s Solicitors to explain to the Court the reason for the adjournment.  Thereafter, on 23 December 2022, the Defendant’s solicitors sent a further letter to Robert Siu & Co urging them to do so without further delay.  This is not disputed by Miss Siu.

18.  In my view, had Robert Siu & Co filed an affirmation or explanatory letter to properly support the Plaintiff’s adjournment application in the first place, there is a fair chance that today’s hearing could be avoided, and even if it is still necessary, the time spent by the Court in dealing with the matter would certainly be substantially reduced. 

19.  On the question of costs, Miss Siu submitted that her client has not responded to them since her firm sent out their letter dated 9 December 2022 to the Plaintiff seeking its urgent instruction as to the steps forward in relation to the trial.  However, this is exactly another reason why the Plaintiff should bear the costs of the Defendant for today’s hearing, given its irresponsible attitude as adopted towards this trial.

Order

20.  Due to the above reasons, this Court makes the following order:-

(1)  The trial is adjourned to another date to be fixed (estimated length of 2 days) on the condition that the Plaintiff shall make an appointment with the Court Registry to re-fix the trial dates within 42 days from the date hereof.

(2)  Unless the Plaintiff shall comply with the adjournment condition mentioned in (1) above, the action shall stand dismissed without further order, with costs of the action to the Defendant (save for such costs order(s) made to the otherwise in this hearing or by the Court before, if any).

(3)  There be no order as to costs of the Consent Summons, except that the costs of today’s hearing be paid by the Plaintiff to the Defendant forthwith, with certificate for counsel, to be taxed if not agreed.

(4)  The Plaintiff’s solicitors shall inform the Plaintiff forthwith of the result of today’s hearing, particularly, the order made by this Court.

(5)  The Plaintiff’s solicitors shall draw up, file and serve this Order on the Plaintiff and the Defendant within 7 days from the date hereof.

21.  Lastly, it remains for me to thank Miss Siu and Miss Leung for their assistance.