GOLDEN TECH (ASIA) LTD v. PO YUEN (TO'S) MACHINE FACTORY LTD

HCA4517/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4517 OF 2001

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

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

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

JUDGMENT

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

1. This is the plaintiff's appeal against the order of Master Levy on 27 November 2003. By her order of that date, she ordered that :

"(1) the plaintiff do have leave to rely on the 2nd Affirmation of Chan Wing-man Arthur filed on 17 November 2003;

(2) the defendant shall file and serve an affirmation in reply to the 2nd Affirmation of Chan Wing-man Arthur within 21 days from the date hereof;

(3) the defendant's Summons dated 26 July 2003 be adjourned;

(4) the costs thrown away by the adjournment of the defendant's Summons be to the defendant with certificate for Counsel to be taxed if not agreed;

(5) the plaintiff's Summons for directions be adjourned sine die with liberty to restore;

(6) the costs of the plaintiff's Summons for directions be reserved."

2. The plaintiff appealed against the order of costs thrown away by the adjournment of the defendant's Summons and also the order that their Summons for directions be adjourned sine die with liberty to restore. The main crux of the appeal is on the order of costs. I cannot see any reason to support the appeal against the order of adjourning the Summons for directions.

3. What happened in the lower court was this (and this has been succinctly set out by the defendant's counsel): on 2 May, the plaintiff took out a Summons for directions and then on 26 July 2003, the defendant applied by way of Summons for security for costs in this action. In support thereof, an Affirmation of Tsui Kam Cheung was filed and served on 26 July 2003. On 12 August 2003, the plaintiff took out another Summons for directions.

4. In the meantime, in opposition to the defendant's application for security for costs, the plaintiff filed an Affirmation of Chan Wing Man Arthur on 25 August 2003. On 5 September 2003, the Summons for security for costs came before Master Woolley for directions, whereby the Summons was adjourned for argument before a bilingual master and the defendant was given leave to file and serve an affirmation in reply to the Affirmation of Chan Wing Man Arthur filed on 25 August 2003. It was later on that the hearing of the aforesaid two Summonses was fixed to be heard together before Master Levy on 27 November 2003.

5. On 17 November 2003, the plaintiff, without leave, filed a 2nd Affirmation of Chan Wing Man Arthur in opposition to the defendant's Summons for security for costs. At the hearing on 27 November 2003, the defendant objected to the plaintiff's reliance on that affirmation on the ground that no leave has been given for that affirmation to be filed and served, and if the plaintiff was to rely on that affirmation, the defendant would need time to take instructions on the content of the said affirmation and reply thereto.

6. At the hearing before Master Levy, the plaintiff insisted on relying on the 2nd Affirmation of Chan Wing Man Chan, although it was clearly indicated to him that, in the circumstances, the hearing had to be adjourned with costs consequences. Accordingly, the aforesaid order was made and Master Levy ordered costs against the plaintiff for late filing of the 2nd Affirmation of Chan Wing Man Arthur without leave.

7. This appeal now turned on whether Master Levy was correct in making that costs order. The main thrust of the plaintiff's appeal is based on the Practice Direction 5.4. The argument of the plaintiff runs like this: since the defendant failed to file and serve a bundle of documents before the court 48 hours before the hearing on 27 November 2003 and file and serve a skeleton argument thereof, the plaintiff is entitled to an adjournment anyway for the defendant's breach and, therefore, the adjournment was not wholly because of the plaintiff's late filing of the 2nd Affirmation of Chan Wing Man Arthur.

8. In this appeal, there was argument whether the defendant had tried to serve the bundles and the documents on the plaintiff's accountant, Mr Wu, or Mr Wu's office, and there is also an argument as to whether the plaintiff had raised this point before Master Levy.

9. On this appeal, in order not to waste time, I just assume that the defendant had not served the same according to the Practice Direction 5.4 and also assuming that this point has been raised before Master Levy.

10. The whole contention of the submission of the plaintiff really depends on the effect of Practice Direction 5.4. Paragraph 1.1 reads as follows:

"All contested interlocutory summons, and appeals to judge in chambers, listed for more than 30 minutes before a judge, or for more than two hours before a master, except interlocutory injunctions, time summonses or cases when an agreed order is sought, the following directions must be complied with -"

The further provision thereunder was a requirement for the applicant or the appellant to serve a skeleton argument 48 hours before the hearing, and in respect of the respondent, 24 hours before the hearing. Before that the applicant or appellant would have to prepare a Bundle of Documents 3 clear working days before the hearing (para. 1.1.3). It is quite clear from the direction in paragraph 1.1 that the service of the skeleton argument is only required for a hearing of more than two hours before a master.

11. The hearing before Master Levy was listed for two hours and therefore all the service of the skeleton argument is not necessary under the Practice Direction. Thus, in any event, without such service, the defendant was not in breach of any practice direction and the plaintiff would not be entitled to an adjournment on the ground of non-service of the same anyway.

12. The adjournment is squarely based on the plaintiff's late filing of the 2nd Affirmation of Chan Wing Man Arthur and costs, of course, would follow the event. I cannot see what error of law Master Levy had committed in this respect.

13. This appeal must therefore be dismissed, with costs to the defendant.