TALLMANY ENTERPRISES LTD v. PROSTEN TECHNOLOGY HOLDINGS LTD AND ANOTHER

HCA669/2009

   IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   COURT OF FIRST INSTANCE

   ACTION NO.669 OF 2009

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BETWEEN

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J U D G M E N T

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1.   This appeal must be dismissed simply on the ground that no valid ground of appeal has been disclosed so far before me. The decision of Master Levy given on 19 June 2009 was to adjourn the security for costs summons to be heard together but after the Order 14 summons taken out by the plaintiff just one day before the hearing of the summons of the security for costs before Master Levy.

2.   If I were the lawyer for the plaintiff, I would have taken out the Order 14 summons with a prayer for abridgement of time to be heard together with the defendants’ summons for security for costs before Master Levy. On the day of the hearing before Master Levy I would have asked for a direction that the two summonses should be heard before a judge in chambers with a clear and tight schedule of filing affirmation. Looking back on the whole situation from the other side now and in particular as to my availability today, the plaintiff could have asked for the filing of reply affirmation in both summonses on or before 29 June whereas the final round of reply affirmation to be filed on or before last Friday, 10 July. In other words, today I could hear the Order 14 summons together with the security for costs summons and by 11:10 now I probably could have finished the Order 14 summons and it would be very clear by now or shortly afterwards, as to whether the plaintiff is entitled to summary judgment because they have a plain and obvious case and there is no triableissues raised by the defence.

3.   Even if or when the plaintiff could not get summary judgment and the other side is entitled unconditional leave to defend, it would be just a one-sentence submission from Mr Tommy Lo, counsel for the plaintiff, in respect of the security for costs issue. The one sentence is : “We do have our shares in the hands of the 1^st defendant which worth last Thursday or Friday to the extent of about $7.8 million” and this will be sufficient even up to the appeal from judge in chambers to the Court of Appeal or to the end of the trial, if any, up to the appeal to the Court of Appeal and thereafter. Mr Lo may even add one sentence after that and say : “The affirmation of Miss Lo Oi Ling for the defendant is a lie because she said in her affirmation under paragraph 4 thereof that to her knowledge the plaintiff has no assets within the jurisdiction of Hong Kong.”

4.   Either she is lying or she is turning a blind eye to the fact that as a company secretary she did not know that the plaintiff’s shares is in the hands of the 1^st defendant.

5.   But unfortunately the plaintiff did nothing of the sort. It or its legal advisers decided to appeal against the direction of Master Levy, which to my mind is a complete waste of time. In fact I would say it is against the interest of the plaintiff itself!

6.   Accordingly the plaintiff’s appeal is dismissed not just because the plaintiff is wrong. The plaintiff is wrong to the extent that :

(a) the appeal does not benefit the plaintiff at all; and

(b) I am of the opinion that the plaintiff should ask for the two matters to be heard together in case the defendants wanted a separate hearing or in case the defendants wanted hearing of the security for costs before the Order 14 summons which apparently they are entitled to do so because that was the horse not the cart.

7.   In this way I am afraid I have to say this : if I accede to the appeal, the result would not benefit the plaintiff at all and this is the first time for me, throughout my years of a sitting on the bench, to have an appeal taken against a direction order but not against a substantive order and in the end the end result the appellant is asking for does not benefit him at all. For aforesaid reason the usual costs should follow the event, i.e. costs to the defendants in any event to be taxed before a Master on gross sum assessment basis, if not agreed.