XCHRX Tang Man Kit v. Hip Hing Timber Co. Ltd.

HCA8000/1990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 8000 OF 1990

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REASONS FOR DECISION

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1. On 3 September 2001, I granted the Defendant's motion to set aside the Writ on the ground that it has been issued without authority. I indicated that I would hear the parties as to the form of order and costs.

Proposed Order

2. The parties were unable to agree on the form of order or costs. The terms of the order proposed by the Defendant were as follows:-

(1) the Re-Re-Amended Writ of Summons be set aside and this action be dismissed;

(2) Tang Man Kit, Foo Tak Ching and the estate of Chan Kam Cheung personally do pay to the Defendant the costs of this action and of and occasioned by the Defendant's application (with certificate for two counsel), such costs to be taxed if not agreed; and

(3) there be liberty to the Defendant to apply for the appropriate orders for the payment of costs by KW Lai & Co, solicitors for the Plaintiff, and Susan Liang & Co and Wong, Hui & Co, former solicitors for the Plaintiffs.

Representation

3. On 21 December 2001, Mr Edward Chan SC appeared for "the unincorporated association known as Wah Yan Mo Fan Heung". Subsequently, he informed the Court that he also acted for Mr Tang Man Kit and Mr Foo Tak Ching personally. As far as the estate of Chan Kam Cheung was concerned, he informed the Court that no probate or letters of administration had been taken out.

4. Mr KM Chong was instructed to appear for KW Lai & Co in their personal capacities. However it appeared that the hearing was fixed without reference to Susan Liang & Co and Wong, Hui & Co. The Court indicated that it would be inappropriate to proceed with the proposed paragraph (3) in their absence.

5. In the event, Mr Johnny Mok counsel for the Defendant, indicated that the Defendant would not proceed with the proposed paragraph (3) and asked for liberty to apply. He also indicated that the Defendant would also not proceed against the estate of Chan Kam Cheung and similarly asked for liberty to apply.

Proposed Order

6. The proposed paragraph (1) was not disputed by Mr Chan SC. As for the 2nd proposed paragraph, Mr Chan SC's submission was that Mr Tang and Mr Foo should not be personally liable for costs because they were representative plaintiffs of the unincorporated group of persons called "Wah Yan Mo Fan Heung". In support of this contention, he referred to paragraph 1 of the Re-Re-Amended Statement of Claim which pleaded that at all material times, Wah Yan Mo Fan Heung "was and is an unincorporated body beneficially interested" in the land in question. This pleading was never formally abandoned, although the case on the Motion was that the Heung was a "t'ong" within s.15 New Territories Ordinance.

Not representative plaintiffs

7. I do not consider that that renders Mr Tang and Mr Foo representative plaintiffs. Their alleged representative capacity was not indorsed on the writ as required under O.6 r.3 (see 15/12/5 Hong Kong Civil Procedure 2002). The pleading that they were "managers" is not indicative that they were representatives because the managers of a group of persons may not necessarily have the same interest as the other persons. Nor was the resolution relied upon by Mr Foo in his affirmation of 19 December 2001 ever pleaded in support of any alleged representative capacity.

8. It would also be observed that if they really were representative plaintiffs and this was a representative action, it is difficult to see why Mr Chan SC has agreed to the proposed order to dismiss the entire action.

9. In any event, even if Mr Tang and Mr Foo were representative plaintiffs, that does not mean that they would be relieved from personal liability to bear costs (see 15/12/41 Hong Kong Civil Procedure 2002).

10. The fact was that Mr Tang and Mr Foo's case was grounded upon their being managers of a t'ong known as "Wah Yan Mo Fan Heung" which they claimed to be a t'ong within the meaning of s.15 New Territories Ordinance. In my Decisions in December 1998 and March 1999, I had referred specifically to the issue of authority to sue and the possible repercussion regarding costs, so there can be no question of any injustice to Mr Tang and Mr Foo caused by an order of costs against them. They will have to look elsewhere for indemnities, if any.

Order

11. I would therefore order that :-

(1) the Re-Re-Amended Writ of Summons be set aside and this action be dismissed;

(2)(a) Tang Man Kit do pay to the Defendant the costs of this action including costs of and occasioned by the Defendant's Notice of Motion issued 26 March 1999 (with certificate for two counsel in relation to the preparation and hearing of the Notice of Motion), such costs to be taxed if not agreed;

(b) Foo Tak Ching do pay to the Defendant the costs of this action including costs of and occasioned by the Defendant's Notice of Motion issued 26 March 1999 (with certificate for two counsel in relation to the preparation and hearing of the Notice of Motion), such costs to be taxed if not agreed, to be limited to costs incurred on or after 22 March 2000;

(3) there be liberty to apply.

I would also make the other orders as to costs previously reserved, as proposed by Mr Mok and not objected to by Mr Chan.