NG YIN NEI v. LEE CHICK CHOI

DCCJ563/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 563 OF 2010

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J U D G M E N T

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1.  Before me today are two appeals by the Defendant. The first appeal is against Master Pang’s decision given on 23 June 2010 directing that the hearing of the Plaintiff’s application to strike out the counterclaim be listed before him on 13 October 2010 with one day reserved. The Defendant contends that the application should be heard by me as I have heard the Defendant’s appeal against the summary judgment on 21 June 2010.

2.  The other appeal is against the Master’s order of costs following his decision to grant summary judgment in favour of the Plaintiff on 15 June 2010. The costs were summarily assessed at HK$40,250 at that hearing. The Defendant now seeks an order that he would not have to pay the costs if he succeeds in his counterclaim.

3.  In relation to the first appeal, the Defendant submitted that the Master is biased against him and he does not appear to be fair.  The Defendant also informed me that at the last hearing, he did not apply to the Master for an order that the matter be transferred to a judge.  In other words, the Defendant only raised this for the first time in this appeal. 

4.  Order 32, rule 17(1) of the Rules of the District Court provides that :

“The Registrar and any master may refer to a judge any matter which he thinks should properly be decided by a judge, and a judge may either dispose of the matter or refer it back to the Registrar or to any master, with such directions as he thinks fit.”

 and rule 17(2) provides that:

“No appeal shall lie from an order of the Registrar or any master made under paragraph (1).”

5.  The Master had reserved the striking out application to himself  and no appeal shall lie from his decision. Also, I do not find that there is any bias or unfairness on the part of the Master. Having heard submissions of the parties and having considered the matter, I dismiss the first appeal. 

6.  There are two other matters which are not part of the appeal but are raised by the Defendant. The first matter is the Defendant’s application for leave to file an affirmation in opposition to the striking out application by the Plaintiff.  At the hearing, it was clarified that Master Pang had already given the Defendant leave to file affirmation in opposition.

7.  The Plaintiff has helpfully agreed to extend the time for the Defendant to file affirmation in opposition.  The Plaintiff’s counsel, Mr Lai, suggested that in view of his travelling schedule at the second half of July, the Plaintiff would agree that the time for filing of the affirmation be extended to Friday, 30 July 2010, and that the Plaintiff will file affirmation in reply within 14 days, that is, by Friday, 13 August 2010.

8.  The other matter relates to the Defendant’s application for an order to deal with the tenancy deposit.  However, the Defendant informed me that since the matter had been dealt with in my judgment on his appeal against the summary judgment, the Defendant would not pursue the matter.

9.  In relation to the second appeal, I also dismiss it as being misconceived.  As I have explained to the Defendant at the hearing, the costs order (which is part of the summary judgment) has already been dealt with by me at the hearing of the other appeal on 21 June 2010.  It is therefore misconceived for another appeal to be filed in relation to the costs order. 

10.  In any event, this is an appeal against the master’s costs order. It is stated in paragraph 58/1/6 of the Hong Kong Civil Procedure that:

“In general, a judge in chambers would not allow an appeal from a master’s costs order unless it is unreasonable or the master erred in law.”

11.  Here the appeal is against the master’s discretion on costs.

12.  In relation to the costs of both appeals, costs should follow the event. This means that the unsuccessful party, in this case the Defendant, will bear the costs of the Plaintiff, which are to be summarily assessed.  I will now hear the parties’ submission on the summary assessment of costs.