BEL NICKEL RESOURCES LTD v. EASTBOURNE TRADING PTE LTD AND OTHERS

HCA 2042/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 2042 OF 2009

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D E C I S I O N

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The application

1.  This is the plaintiff’s application for the following:

a. Leave for service of witness statement of Hu Xiao Xin (胡曉新) and

b. To give evidence by Mr. Hu at trial via video link.

2.  The defendants oppose the application.

3.  Ms C. Lee, counsel acts for the plaintiff.  Mr. Fenn, solicitor acts for the defendants.

4.  Ms Lee advises the Court that it is unnecessary to consider the plaintiff’s application for video link evidence.  The plaintiff simply wants to reserve its right.  On this basis, I dismiss the plaintiff’s application for video link evidence.  It is not necessary to reserve its right by way of a summons.

The factual background

5.  I have made reference to the Decision delivered by L. Chan J. on 7 September 2010 for the factual background and I gratefully adopt his Lordship’s summary of the facts as follows:

“The Plaintiff’s Claim

3. The plaintiff brings the claim on the basis of an agreement dated 30 August 2008 that it made with the 1st defendant.  For convenience it is called the “BEL Agreement”.  The plaintiff by this agreement agreed to purchase from the 1st defendant 100,000 wet metric tonnes nickel ore at US$38.10 per tonne.  

4. The 1st defendant pursuant to this agreement made a partial delivery of 51,891 wet metric tonnes.  The plaintiff claimed that the nickel ore as delivered did not conform to the contract’s specifications and was not of merchantable quality or otherwise not reasonably fit for the purpose for which they were bought and the purpose was known to the 1st defendant.  The goods were therefore rejected.  The plaintiff claims loss and damage flowing from the 1st defendant’s breach of the BEL Agreement.

5. In addition, the plaintiff has pleaded that the 2nd defendant in mid-December 2008 and mid-January 2009 gave the plaintiff a guarantee that if the 1st defendant should fail to compensate the plaintiff, the 2nd defendant would assume the liability to do so.  The plaintiff further pleaded that the 3rd defendant gave a similar guarantee on about 18 April 2009.”

Discussion

6.  Ms Lee submits that in fact Mr. Hu had already served his affirmation with the same contents as in his witness statement.  The plaintiff could have made an application for leave to read out Mr. Hu’s affirmation at trial under Order 38 rule 2 RHC.  I consider that this has put the plaintiff to elect which course it wishes to pursue.  Ms Li has confirmed that the plaintiff has elected to apply for leave under Order 38 rule 2A RHC.  That is to say, if this Court turns down its application, it cannot proceed on Order 38 rule 2 for Mr Hu’s affirmation.

7.  The defendants’ grounds of objection to this application are these:

a. There is delay for the plaintiff to make this application;

b. The plaintiff has given no reason for the delay;

c. The Court had given directions to the plaintiff to file and serve the supplemental witness statement, but the defendant did not comply with the court’s directions.

8.  The plaintiff submits that the reasons for the delay have been given in the solicitor’s affidavit in support of this application.  It is because the plaintiff was uncertain if the witness would be available to give evidence.  Up till now, the plaintiff is still unsure if he can come to Hong Kong to give evidence at trial.  However, the defendants suffer no real prejudice even if the plaintiff has caused the delay.

Conclusion

9.  Having considered the submissions, I decide that leave should be given to the plaintiff for the following reasons:

a. Although leave has been given to the plaintiff to set down the matter for trial, there has not been any trial date yet;

b. The substance of the proposed witness statement is not substantial, such as will cause longer trial time;

c. The defendants have not been able to inform this Court that they will suffer any real prejudice if leave is granted to the plaintiff to serve the witness statement;

d. The primary aim under Order 1A rule 2(2) of the RHC is to secure the just resolution of disputes in accordance with the substantive rights of the parties; and

e. If leave is refused for the plaintiff to adduce the evidence of Mr. Hu, the plaintiff’s substantive rights will be affected.

Costs

10.  As to the costs of this application, I have to put on record that this is an extraordinary case where I have to refuse costs to the plaintiff even though it has succeeded in this application because the application was made on short notice.  I only received counsel’s written submissions this morning shortly before the hearing.  There is no hearing bundle for me and much time has to be spent on locating the relevant pleadings and orders.  The plaintiff agrees that the costs for the application should be awarded to the defendants, which amounts to $1,500 as assessed under Order 62 rule 9A RHC covering the costs for perusal of the summons and the short affidavit in support.

Order

11.  I shall now make an order in terms as follows:

a. The plaintiff’s application for video link evidence be dismissed;

b. The plaintiff shall have leave to serve the witness statement of Mr. Hu as per the draft annexed to the letter dated 2^nd January 2014 within 14 days from the date hereof;

c. The costs of this application be assessed at $1,500 to be paid by the plaintiff to the defendant within 14 days from the date hereof and there be no order as to costs for today’s hearing.