CHINA RESOURCES PROPERTY MANAGEMENT LTD v. MAX MERIT LTD

DCCJ 2012/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2012 OF 2010

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BETWEEN

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DECISION

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1.  On 18 July 2012, I handed down my judgment for these proceedings in which I gave judgment for the plaintiff on its claim for HK$140,000 with interest and judgment for the defendant on its counterclaim for HK$70,203.36 with interest.

2.  On 27 July 2012, the plaintiff’s solicitors made a written application that I reconsider my judgment by entering judgment for the balance of the claim and the counterclaim in the sum of HK$69,796.64 (“plaintiff’s application”).

3.  Pursuant to my directions, the parties prepared written submissions on the plaintiff’s application.  The defendant opposes the application.

4.  In these proceedings, although I have handed down my judgment, the corresponding order has not been drawn up nor perfected.  Before sealing of the order, this court has jurisdiction to reconsider its judgment.  The exercise of that jurisdiction was considered in Sun Jianqiang v Trans-Island Limousine Service Ltd [2004] 1 HKC 533.  For the purpose of this decision, I need not go into the details of that judgment other than to say that the Court of Appeal held that the court would only exercise its jurisdiction to reconsider its judgment in exceptional case that strong reasons were shown for reconsideration.  Examples of strong reasons include a plain mistake on the part of the court, a failure of the parties to draw to the court’s attention a fact or point of law that was plainly relevant, or discovery of new facts subsequent to the judgment being given.  This list is not exhaustive.

5.  The plaintiff relies on the purported ground that during the trial for these proceedings, the parties did not draw the court’s attention to the fact that in the reply and defence to counterclaim filed on 10 January 2011, the plaintiff had pleaded a set-off of its claim against the defendant’s counterclaim.  I reject this.

6.  Although in the reply and defence to counterclaim, the plaintiff had pleaded a set-off, during the opening submissions for the trial, Ms Kay Seto on behalf of the plaintiff specifically took the position that there should be no set-off as the respective basis of the claim and counterclaim were entirely different - the plaintiff’s claim was based on the Licence of the OSA whilst the defendant’s counterclaim was based on the Defendant’s Lease of the Shops. In the light of this and given that in its defence and counterclaim filed on 24 November 2010, the defendant did not plead a set-off, I made the separate orders for the plaintiff’s claim and the defendant’s counterclaim as set out in paragraph 102 of my judgment.  Had the position been otherwise, I would have given judgment for the balance pursuant to O 15, r 2(4) of the Rules of the District Court.  In my judgment, the plaintiff is simply seeking to revisit a stance which it had ultimately taken at the trial.  This is not a basis for inviting the court to reconsider its judgment.

7.  For the above reasons, I am not persuaded that I should reconsider my judgment.  I therefore dismiss the plaintiff’s application.