R.A. STEGEMANN v. WISE POWER FAR EAST LTD AND OTHERS

HCA282 & 283/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 282 OF 2005

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BETWEEN

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AND

ACTION NO. 283 OF 2005

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(HEARD TOGETHER)

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DECISION

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1. On 7 July Mr Registrar Chan handed down a decision in relation to applications made in HCA282/2005 and HCA283/2005.

2. In HCA282/2005, Mr Stegemann was the plaintiff and Mr Ho who appeared in court today, the 2^nd defendant.  In HCA283/2005, Mr Ho is the 2^nd plaintiff suing Mr Stegemann as the defendant.

3. A number of issues were before the learned Registrar but on analysis there are only two issues to be decided in this appeal this morning.

4. The first is in relation to the Registrar’s decision to strike out Claims D and E of Mr Stegemann’s claim in HCA282/2005.  The reasons he struck them out were because, in his judgment, they were claims for costs and not damages.  I am satisfied that Mr Stegemann now fully appreciates the difference between costs and damages and, in my view, the Registrar was quite correct in classifying Claims D and E as substantially claims for costs rather than damages and was right to strike them out and I think Mr Stegemann now understands the reasoning behind that.  If he still believes (may be after taking legal advice) that he has outstanding claims which are correctly described as “damages” as opposed to costs in Claims D and E, it is open to him to apply to the court to amend his Statement of Claim to include such heads of damages.

5. I therefore dismiss the appeal as far as the Registrar’s decision in relation to striking out Claims D and E are concerned.

6. The other matter concerns the Registrar’s decision to strike out the plaintiff’s claims in HCA282/2005 against the 3^rd defendant. 

7. Mr Stegemann has been candid with the court today and has explained that his key reason for wanting the 3^rd defendant included was because that would enforce any order for costs in his favour that he may get in the future.  That on its own is no ground upon which it is proper to include a party in litigation.  There must be some evidence of a contract between the plaintiff and the 3^rd defendant.  The Registrar came to the conclusion that there was none and indeed Mr Stegemann realistically concedes that previous rulings in that regard are against him which is why he sensibly, in my view, says in his Notice of Appeal that :

“As two Hong Kong judiciaries have now determined that my claim against the 3^rd defendant is inappropriate, the plaintiff only objects to the method of dismissal — not the dismissal itself.”

8. However, the question of costs relating to that part of the striking-out remains alive.  Mr Registrar Chan made specific directions as to the costs in that regard at paragraph 54 in his Decision.  He set down directions for the assessment of costs and ordered that the costs were a nisi order.  It was not to become absolute until the passage of 14 days.  Mr Stegemann has not, as I understand it, fully complied with the directions as yet and so that matter is ongoing.  It is of course open to him to ask for the nisi order to be extended to enable him to comply with the other directions.  But as the matter of costs is still in the hands of the Registrar, I make no decision in that regard in this hearing.  It should be noted however that all he did was to make the usual order of “costs following the event”, namely that the plaintiff should pay the costs of the 3^rd defendant because the plaintiff was unsuccessful in front of the Registrar in keeping the 3^rd defendant in the litigation.  It is up to the parties to take what steps they consider appropriate within paragraph 54 of the Registrar’s Decision.

9. To summarise, the two issues which remained for this court to determine have now been decided and no alterations or amendments will be made to Mr Registrar Chan’s decision.  To that extent, the appeal which I have attempted to keep within a narrow focus has not succeeded and is dismissed.

[Discussions on Costs]

10. Before I decide on costs, as I said at the outset and I make an order under section 43 of the District Court Ordinance to transfer this matter to the District Court.  The total damages being at the lower end of the District Court scale and in the absence of any unusual features, it is inappropriate for this court to be seized of the matter.

11. As far as today’s appeal is concerned, costs should follow the event and I order the plaintiff to pay the costs of the defendants in the fixed sum of $1,000 in any event.