HCA 1479/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1479 OF 2009

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BETWEEN

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REASONS FOR DECISION

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1.  This application was heard in the 3-minute chamber hearing and it was contested. By consent, it is now dealt with on the papers, the parties having submitted the affidavit evidence and their written submissions already.

2.  The application was taken out by the 5^th and the 6^th defendants for an extension of time for filing and serving their Defence and Counterclaim within 28 days after the determination of their appeal to be heard on 11 January 2011 against Master de Souza’s order made on 6 October 2010, which allowed the plaintiff to join the 5^th and the 6^th defendants as parties to this proceeding, giving leave the plaintiff to amend the statement of claim as well.

3.  The plaintiff opposes this application because, if granted, it amounts to a stay of the proceedings regarding the 5^th and the 6^th defendants.

4.  The reason of the 5^th and the 6^th defendants in support of their application is that Master de Souza made the decisions without allowing them to submit affidavit evidence in support of their opposition. They maintain that Master de Souza should not allow the plaintiff to join them as defendants in the proceedings. However, in their counsel’s written submission, they still have not disclosed the reasons for their opposition. Nor am I able to find the reasons for opposition in Master de Souza’s notes of proceedings. That Master de Souza had not allowed the 5^th and 6^th defendants to file and serve their affidavits of opposition does not bar the 5^th and the 6^th defendants from stating the grounds of objection in the written submission. Obviously, the 5^th and 6^th defendants have elected not to disclose their grounds of objection for my consideration.

5.  The plaintiff opposes this application simply on the ground that absent any grounds against leave for joining the 5^th and 6^th defendants, the court should not assume that the appeal will stand a good chance of success and stay the proceedings for about 4 months.

6.  Both parties rely upon the spirit of CJR in support of their argument – to save time and costs for their respective clients. The 5^th and 6^th defendants say that costs for preparing the Defence and Counterclaim will be wasted if their appeal is allowed. The plaintiff says that if the court grants the application without valid reason, the matter will be delayed for 4 months. There is no ground to assume that the 5^th and 6^th defendants have a good chance of success in their appeal.

7.  Having considered the affidavit evidence and the written submissions from the parties, I decide to dismiss the summons of the 5^th and 6^th defendants for the reasons below.

8.  I have checked the file notes of Master de Souza made on the date of hearing on 6 October 2010, in which it was recorded that both the plaintiff and the 5^th and 6^th defendants were represented by counsel, who had made submissions before him. Mr. Wong for the 5^th and 6^th defendants had submitted that the matter should be adjourned for argument and the defendants should be given 28 days to file and serve the affidavit and that senior counsel would be instructed. Mr. Ho for the plaintiff argued that the plaintiff had the right to join the defendants and there was no need to adjourn the matter.

9.  It is obvious that the matter had been argued before Master de Souza, who made the decision after considering the arguments. If the 5^th and 6^th defendants refused to give their reasons for objection to the plaintiff’s application at the hearing before the Master, they should not complain that they had not been given the opportunity of putting in the reasons for their objection. After all, it is not mandatory for the defendants to give their reasons of opposition on affidavit. The court will not refuse to consider the reasons given by counsel at the hearing.

10.  There is no material before me that can show that the appeal has any chance of success. I therefore find that there is no reason for the matter to be stayed as proposed by the 5^th and 6^th defendants in their summons, which I now dismiss with costs.

11.  As to costs of this application, the parties have, upon request by this court, submitted their skeleton bill of costs. The costs of the plaintiff are summarily assessed to be $12,000.00. This is a relatively simple case fixed for 3 minutes. The hearing is not appropriate for counsel’s attendance. The fees for counsel’s attendance and for solicitor attending counsel are disallowed. This costs order in nisi shall be absolute 14 days after delivery of this Decision under O.42 rule 5B(6) of the Rules of The High Court unless an application has been made to vary it.