CHAN WAN KEUNG WILLIAM v. GROCERY HOLDINGS PTY. LTD.

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

COMMERCIAL LIST NO. 169 OF 1995,
AND NOS. 161, 207 & 208 OF 1994

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J U D G M E N T

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1. I have before me two summonses for consolidation, one dated 26th May 1997 in CL-169/95 and one dated 28th May 1997 in what, for shorthand purposes, I will call the 'existing consolidated actions', namely CL-161, CL-207 and CL-208 of 1994.

2. The latter actions were consolidated, for very good reason, if I may respectfully say so, by Order of Mr. Justice Barnett dated 22nd May 1995.

3. The existing consolidated actions deal with a dispute between the Plaintiff seller, a Hong Kong company, and the Defendant buyer, an Australian company, with regard to the supply of houseware by the Plaintiff to the Defendant. The consolidated actions in essence deal with the sale of bakeware and dinnerware bearing the mark "Fleurs". These actions are of some size. A brief look at the pleadings indicates that the Plaintiff's claim is in excess of US$5 million, and there is a counterclaim therein for some A$3.5 million.

4. Action CL-169/95, on the other hand, was issued on 8th September 1995, almost four months after the order for consolidation made by Mr. Justice Barnett. On the pleadings as they presently stand this action involves a discrete issue, although as a matter of background fact it again involves the sale of houseware by the Plaintiff to the Defendant, in this case glassware. The pleadings are in very short form, with no counterclaim, and so far as I am able to see effectively the only factual issue involved is whether there was a mutual release of contractual obligations in the week commencing 6th June 1994 between the respective representatives of the parties.

5. As a matter of practical politics CL-169/95 is well advanced down the litigation trail. It was actually set down for trial on 9th April 1997, and is scheduled for hearing before me on 17th to 20th November 1997. The amount of stake is some US$750,000.00.

6. The summons to consolidate, therefore, comes late in the day. My understanding, and this is confirmed by Counsel, is that the existing consolidated actions are presently in the course of discovery, so that the two trains, as it were, are hardly running in tandem. Mr. Oderberg, who appears for the Defendant/Applicant this morning, tells me that he does not seek delay in any form, and that he does not seek a vacation of the November dates; for his part he sees no reason why, if consolidated, the entire case, that is, both CL-169/95 presently scheduled for hearing, together with the existing consolidated actions, should not come on for hearing in November. He also tells me very fairly from the Bar that although he appreciates that on the face of the pleadings as they stand there is no apparent overlapping in terms of an issue of law or fact which might otherwise justify consolidation pursuant to the provisions of Ord. 4 r. 9, nevertheless he has proposed amendments to the pleadings in CL-169/95 which should put to rest the Court's existing misgivings about the present application. However, the difficulty this morning is that the amendments, although apparently formulated in draft, have not reached Mr. Denis Chang S.C. and his junior, although apparently they were sent yesterday to those instructing Mr. Chang. I should add that the Court also has not had sight of the proposed amendments.

7. The situation, therefore, is rather unsatisfactory. Mr. Oderberg has made application in the middle of his present consolidation application to stand down the present application so that it can be, as he puts it, 'conjoined' with an application for amendment of his pleadings. He hopes that this combined application would come on at some stage within the next three weeks, although I am bound to say, knowing the state of the Court diary, that this may be a trifle optimistic. Be that as it may, that is his application.

8. Mr. Chang S.C. takes a firm line. He asks the Court to deal with the application as it stands. He says that it has come very late in the day, and he says that there is no reason for this application to be hanging over the parties' heads when they are going to be preparing for the trial of what is an apparently discrete issue in November of this year. I have considerable sympathy with this submission. Without having heard Counsel in extenso, I think it would be unfair to say more at this stage than that perusal of the papers prior to this hearing did provoke the view that this application for consolidation comes very late in the day (a mere look at the chronology indicates that) and therefore that there would have to be compelling grounds to order consolidation, even were such application to proceed today.

9. But the Court is left in rather a vacuum at the moment. Mr. Oderberg mounts his present application on the basis of a foreshadowed amendment which may or may not be allowed, which his opponent has not yet seen, and neither has the Court. I hope he will forgive me if I comment that this is not a satisfactory state of affairs. Coming when it does, I think it behoved the Defendant/Applicant to put its house in order if it wanted to maintain an application for consolidation which might quite possibly have serious ramifications; if consolidation were to be ordered I think that Mr. Oderberg is being optimistic if he thinks that any such consolidated case could seriously be anticipated to be heard in November, given the present state of progress with the existing consolidated actions.

10. In dealing with this application, I also remind myself, of course, of the provisions of Ord. 4 r. 9 and of the principles relating to consolidation, at White Book Marginal Note 4/9/1 (at page 27).

11. In all the circumstances, I think Mr. Chang S.C. is right. Indeed it is my firm view that this application should be disposed of today, so that there is at least an element of finality at this relatively late stage before the November hearing date scheduled for CL-169/95. If Mr. Oderberg wishes to mount another application, whether for consolidation and/or amendment, then that will have to be dealt with on its merits at the time. Accordingly, I am going to dismiss the application for consolidation taken out by way of the summonses dated 26th May 1997 and 28th May 1997.

12. So far as I am concerned at the moment, and I note that this is a Commercial List case, the matter presently set down and scheduled for November the 17th-20th of this year will continue, unless and until any other order to the contrary is made. But such other order will not be made today; as I have said the present applications for consolidation are dismissed. It seems to me, also, that unless Mr. Oderberg has anything to say the applications must be dismissed with costs.

(Submissions from Counsel)

13. The consequence of the decision I have delivered, namely that the summonses be dismissed with costs, has prompted an application from Mr. Louis K.Y. Chan, appearing with Mr. Denis Chang S.C., for a certificate for two Counsel. The thrust of his able submission is that the potential consequences, were the Court to accede to this 11th-hour application, were really quite considerable from the point of view of the Plaintiff. Mr. Oderberg opposes with spirit. He asks rhetorically that if this case is fit for leading Counsel what case is not? I take the rhetorical question with a pinch of salt. But I am bound to say that it is on the face of the papers in their present form that the application has been dismissed, and not in light of any application to amend that may or may not have been made, and as such the application on the present papers is, if I may respectfully say so, a straightforward matter which is well within the competence of junior counsel. Mr. Denis Chang S.C. illumines any court and I have, of course, been greatly assisted by his presence. But that is not to the point. The question is whether the case as presented, and I stress those words, was fit for two counsel in the opinion of the Court. Although I have had pause to reflect, in my view I cannot sanction a certificate for two counsel, much as I might wish to do so. Accordingly I refuse that application.