Wong Sui Fung and Another v. Yip Siu Keung

LDBM 248/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. LDBM 248 of 2000

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Decision

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1. On 1.11.2000 upon the Applicant's application, I made various orders/directions relating to the conduct of the trial of this case. One of the Applicant's applications on that day was to strike out a sentence in Para. 5(d) of the Notice of Opposition. The application was adjourned to 17.11.2000. Upon dismissing the strike out application on 27.11.2000, I made an order nisi, to be made absolute in 14 days' time.

2. On 5th December, 2000 the Respondent's Solicitors, Hastings & Co., delivered by hand to my clerk a letter the contents of which are as follows :-

"We refer to the order nisi made on costs by Mr. Justice Chow on 22nd November 2000.

We are instructed to contest the order. Please proceed to fix a hearing date and let us have the notice thereof as soon as possible."

3. A copy of this letter was not sent to the applicants' Solicitors.

4. On 6.12.2000, the Assistant Registrar of the Lands Tribunal sent to the parties a Notice of Hearing in the following terms :-

"There proceedings have been set down for hearing before the Lands Tribunal at Court No. 2, 1st Floor, Lands Tribunal Building, 38 Gascoigne Road, Kowloon on 2 January 2001 at 9:30 a.m."

5. On 11th December 2000, the Applicants' Solicitors, Fok & Johnson, faxed a letter to the Registrar of the Lands Tribunal, stating,

"We refer to the Notice of Hearing dated 6th December 2000, whereby these proceedings have been set down for hearing on 2nd January 2001 at 9:30 a.m. at Court No. 2 of the Lands Tribunal.

We write to draw your attention to the Order of His Honourable Judge Chow dated 1st November 2000 which gave directions as to the course of the action, including the filing and exchange of the List of Documents, expert evident report, and witness statements. Please be advised that we are now in the stage of inspection of documents, and the directions as to the filing and exchange of expert evident report and witness statements will not be completed before the date of the hearing.

In the circumstances, we respectfully request the Tribunal to postpone the hearing to a date to be fixed."

6. On 12.12.2000, the Assistant Registrar of the Lands Tribunal faxed to Messrs. Hastings & Co. a note that Messrs. Fok & Johnson requested the Tribunal to postpone the hearing date on 2.1.2001, and enquired Messrs Hastings & Co. if it had any objection to their request.

7. On 14.12.2000, the Assistant Registrar of the Tribunal faxed to Messrs. Fok & Johnson a note dated 5th December, 2000 from Messrs Hastings & Co. for their information.

8. On 18.12.2000, Messrs. Fok & Johnson wrote to Messrs. Hastings & Co., stating the following matters :-

"We refer to the hearing fixed on 2nd January 2001 which were set down upon your application to the Lands Tribunal by your letter dated 5th December 2000.

The hearing has been fixed for 1 hour. We regret to note that you applied to obtain the said hearing date without any consultation with us although under the practice direction you should have consulted us to obtain the hearing date, if you consider the hearing to last more than half an hour.

In the circumstances, please let us know by return before the close of business today whether you will proceed to adjourn the hearing to a date to be fixed, failing which we shall apply to the Court to vacate the said hearing and claim against your client for such costs unnecessary incurred thereof."

9. On 18.12.2000, by way of a letter faxed to the Lands Tribunal and to Messrs. Fok & Johnson, Messrs. Hastings & Co. stated that there was no ground to postpone the hearing date on 2.1.2001.

10. On 19.12.2000, Messrs Fok & Johnson took out a summons returnable on 22.12.2000 to vacate the hearing date on 2.1.2001.

11. On 22.12.2000, Miss Courbet, solicitor for the Applicants, informed the Tribunal that before taking out the summons on 19.12.2000, her firm (Messrs. Fok & Johnson) had left 2 messages by telephone to Hastings & Co., but there was no reply from Messrs. Hastings & Co. to these messages. She was not able to attend the hearing on 2.1.2001 because she would be away from Hong Kong on that day.

12. On 22.12.2000, the hearing on 2.1.2001 was refixed to 5.1.2001 to suit the convenience of Miss Courbet.

13. The reason for Messrs. Fok & Johnson to apply for vacating the hearing date is that Miss Courbet would not be available on 2.1.2001. That cannot be a good ground for vacating the hearing date. If Miss Courbet is not able or unwilling to cancel her trip outside Hong Kong, another solicitor from Messrs. Fok & Johnson could attend the hearing on 2.1.2001 in her place. Messrs Fok and Johnson did not disclose this reason in their letter dated 18.12.2000 to Messrs. Hastings & Co., in which they only accused Hastings & Co. of being in breach of practice direction for not having consulted them before they applied to have the hearing date. They did not say that they were unable to attend the Tribunal on the hearing day. Thus it is correct for Hasting & Co. to say in their letter dated 18.12.2000 that there was no ground to vacate the hearing day.

14. The hearing date on 2.1.2001 was unnecessarily vacated. The Respondent had to attend the hearing on 22.12.2000 on the application of the Applicants to vacate the hearing date.

15. Based on the matters above-said, the Applicants have to bear the Respondent's costs in respect of the summons heard on 22.12.2000, to be taxed, if not agreed, and I so order.