RICOH HONG KONG LTD v. WALLBANCK BROTHERS SECURITIES (HONG KONG) LTD

DCCJ2454/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2454 OF 2013

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DECISION

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Introduction

1. This is the defendant’s appeal against a master’s decision.

2. The defendant is represented by Mr Chan Kin Fung, Phil (“Mr Chan”), the chief executive officer and a director of the defendant. Mr Chan is also a practicing solicitor.

3. By an order dated 11 September 2014, Master SP Yip set this action down for trial with a pre trial review.  The defendant appeals solely on the ground that this action should not be set down for trial.

Background & chronology

4. The plaintiff filed its statement of claim on 5 July 2013, it pleaded, as evidenced by two written agreements dated 23 April 2008 and 2 October 2009, the plaintiff agreed to lease two photocopying machines to the defendant and the defendant agreed to pay respective monthly rent together with copying fees at a page count of “black and white pages”.  The plaintiff claims the defendant for an outstanding sum $72,020.40 due and owing arising from the two written agreements.

5. On 19 August 2013, the defendant filed a defence.

6. On 16 September 2013, the plaintiff filed a reply.

7. On 6 December 2013, in a case management summons hearing,  Master SP Yip gave directions for parties to attempt mediation if desired; to exchange witness statements; to obtain counsel’s advice if required; and to file and serve a signed agreed statement of issues.  The case management summons hearing was adjourned to 3 July 2014.

8. On 16 April 2014, the plaintiff filed an answer to the request for further and better particulars of the reply.

9. On 3 July 2014, in the 2^nd case management summons hearing,  Master SP Yip gave directions that no expert evidence shall be adduced by parties.  For reason of the parties’ failure to comply with previous directions on exchanging witness statements, an unless order was ordered.  Master SP Yip further ordered compliance of the filing an agreed statement of issues.  A case management conference was arranged on 11 September 2014.

10. In the case management conference on 11 September 2014, Master SP Yip ordered:-

(1) The action be set down for trial before a Bilingual Judge in the fixture list, to commence at 9:30 am on 26 January 2015 at court no. 11 of the District Court, the estimated length of trial being 3 days, with 27 and 28 January 2015 be reserved.

(2) A pre trial review hearing be fixed at 9:30 am on 10 December 2014 at court no. 11 of the District Court with 2 hours reserved.

(3) The plaintiff shall file and serve an application to set a case down for trial by 25September 2014.

(4) The parties shall endeavour to agree the contents of the trial bundle which shall be prepared in accordance with Practice Directions 27 and 5.6 and be lodged with the court and be served on the defendant by the plaintiff at least 14 days before the pre trial review.

(5) All interlocutory applications made after setting down shall be listed for hearing before the trial judge at the pre trial review, unless the court directs otherwise.

Further  evidence

11. In the call over hearing of this appeal, the plaintiff conceded the defendant to adduce further evidence of a related claim in the Small Claims Tribunal (SCTC 47483/12)[1] which includes a written decision of Mr Anthony Chow, the principal adjudicator of the Small Claims Tribunal dated 11 November 2014 (“the Decision”).  In SCTC 47483/12, the defendant (as the claimant) claims the plaintiff and its staffs (the defendants) for damages for breach of duty of care arising from the dealings of two written agreements in this action.

12. Mr Chan explained, SCTC 47483/12 should be considered as further evidence in this appeal because Master SP Yip refused to consider those documents submitted by the defendant, in an impromptu manner, in the case management hearing.

13. It is trite law that Ladd v Marshall[2] conditions have to be fulfilled before leave could be granted to adduce further evidence: (i) the further evidence could not have been obtained at the trial with reasonable diligence; (ii) would or might, if believed, have a very important effect on the mind of the tribunal; and (iii) is of a sort of which inherently is not improbable.

14. It is obvious the defendant could not satisfy the Ladd v Marshall conditions because the SCTC 47483/12 claim was commenced on 21 December 2012. It must be the defendant’s choice not to have disclosed in its List of Documents filed on 20 February 2014, or by way of any proper means to disclose them prior to the case management conference.  

15. Albeit the plaintiff conceded, the court should be strict on adducing further evidence.  I see no justification that the defendant is entitled to adduce this piece of further evidence in the appeal against Master SP Yip’s decision. I refuse to grant leave to the defendant to adduce the abovementioned further evidence.

The defendant’s submissions

16. Mr Chan submitted, this action should not be set down for trial because (i) the plaintiff has filed a “falsified” statement of claim, the evidence in the plaintiff’s witness statement does not support the plaintiff’s claim.  The plaintiff should not be allowed to proceed. Master SP Yip should, in the case management hearing, stay the action by his own motion; and alternatively, (ii) the defendant has a related, ongoing claim in the Small Claim Tribunal (SCTC 47483/12).

Discussion

Practice Directions 5.2 and the nature of appeal against master’s decision

17. Case management orders are not susceptible to appeal but the hearing judge may re-exercise his discretion afresh.  The principle is stated in  §25/1A/14, the commentary of the Hong Kong Civil Procedure 2015:-

“The Court of Appeal has indicated a reluctance to interfere with judges on matters on case management: Korean Building Materials Trading Corp v Hong Kong Dongil Trading Co Ltd (unrep, CACV 198 of 1993, February 24, 1994) [1994] H.K.L.Y. 946, CA. This approach is likely to continue under the new regime as the new PD 5.2 makes it clear that case management decisions are matter within the discretion of the master or judge and are generally not susceptible to appeal (PD5.2 para. 38). However, it seems that a judge may exercise the case management discretion afresh in the usual way from a master (O58 r1).”

18. The commentary of §58/1/2 of The Hong Kong Civil Procedure 2015 states the nature of an appeal against a master’s decision:-

“An appeal from the master to the judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time, save that the party appealing, even though the original application was not by him but against him, has the right as well as the obligation to open the appeal…. The judge “will of course give weight it deserves to the previous decision of the Master, but he is in no way bound by it…”

19. When the abovementioned commentaries are read in conjunction, in this appeal, by way of rehearing, I shall consider whether to re-exercise the discretion of setting down this action for trial afresh.  

The underlying objectives of Order 1A rule 1

20. A master shall set an action down for trial should he considered the parties are ready to do so.  The decision to set a case down for trial should be considered in achieving the underlying objectives of Order 1A rule 1 of the Rules of District Court, Cap 336H, inter alia;-

“(a) to increase the cost-effectiveness of any practice and procedure to be followed in relation to proceedings before the court;

(b) to ensure that a case is dealt with as expeditiously as is reasonably practicable;

(c) to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings;

(d) to ensure fairness between the parties; …”

21. In this action, a case management conference has been arranged, it is expected the parties should be very close to set down the action. Without good reasons, the case management conference shall not be adjourned because such adjournment will not be in line with the underlying objectives of the Order 1A rule 1.

22. In the plaintiff’s listing questionnaire filed on 1^st September 2014, apart from the disagreement on the agreed statement of issues, no other salient features appeared to prevent this action to be set down for trial.

23. In the defendant’s listing questionnaire signed by Mr Chan filed on 4 September 2014, the defendant explained the following outstanding matters section B1:-

Statement No.	Explanation
A3	The parties have not yet agreed on the Agreed Statement of Issues in Disputes
A4, A5, A6, A7	The defendant may take out an application for specific discovery of documents
A9, A15, A16	Further witness may be called subject to discovery of documents
A17	Outstanding issue as to the specific discovery of documents
A11, A12, A13, A14	Not applicable

24. Mr Chan submitted there might be possible interlocutory applications to be taken out by the defendant, the action should not be set down for trial at this stage.

The Agreed Statement of Issues

25. On 3 July 2014, Master SP Yip was aware the plaintiff has first drafted the agreed statement of issues, only that the defendant has failed to give its comments.  Master SP Yip thereby ordered the defendant, by way of an unless order, to comment on the plaintiff’s draft agreed statement of issues, failing which the same be deemed to be the agreed statement of issues of the parties.  The defendant, in its letter dated 18 August 2014, made comments to the plaintiff’s draft agreed statement of issues.  As at the appeal, the parties could not have reached an agreement on the statement of issues. I am of the view that an absence of an agreed statement of issues is not a bar to set an action down for trial. Parties can make submissions on their disagreement and to seek directions in the pre trial review.

26. Mr Chan indicated some other interlocutory applications are imminent, including applications for an order of specific discovery of document against the plaintiff.  Nevertheless, as at 11 September 2014, when the case is set down for trial, no summons was taken out by the defendant.

27. Mr Chan (being a practicing solicitor) put forward an ingenious argument that Master SP Yip should scrutinize the plaintiff’s evidence in the case management conference and to stay the action on his own motion. It goes without saying the argument is bound to fail because a master should not assess evidence.  

28. What came before me, in this appeal proper, are that the pleadings need no further amendment, discovery has been completed, witness statements have been exchanged. It is the duty of the court to set this action down for trial so as to ensure that a case is dealt with as expeditiously as is reasonably practicable.  Without applications taken out by either party in the case management conference, the action should be set down for trial, without further delay, so as to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings and to ensure fairness between the parties.  I am in agreement with Master SP Yip that this action is appropriate to set down for trial.

The Small Claims Tribunal claim SCTC 47483/12

29. Even if I was wrong in refusing the defendant’s application for leave to adduce further evidence of the related claim SCTC 47483/12 in this appeal, the further evidence will not assist the defendant in this appeal.

30. Mr Chan submitted this action was not ready to set down for trial because SCTC 47483/12 is a related ongoing claim, both actions have the same facts. Mr Chan was of the view that this action should be stayed pending determination of SCTC 47483/12 in the Small Claims Tribunal.

31. As a matter of background, the defendant (as the claimant) commenced two claims in the Small Claims Tribunal, namely, SCTC 11439/2011 & SCTC 47483/12 against the plaintiff (as the and one of the defendant(s)).

32. Mr Anthony Chow, the principal adjudicator stated in his Decision that SCTC 11439/2011, the 1^st claim, was heard and dismissed.  The defendant (as the claimant)  sought leave to appeal in the Court of First Instance with a hearing fixed on 23 April 2013.  Upon the defendant’s (as the claimant’s) application, the hearing was adjourned to a date to be fixed.  The defendant (as the claimant) took no further action. 

33. SCTC 47483/12, the 2^nd claim, was commenced on 21 December 2012, the defendant (as the claimant) claims the plaintiff (as the 5^th defendant) and its staffs (as the 1^st – 4^th defendants) $48,866 being damages for breach of duty of care owed to the defendant (as the claimant).  The defendant (as the claimant) applied for disclosures of documents from the plaintiff (as the 5^th defendant). The application was dismissed by the Mr Anthony Chow, the principal adjudicator.  The defendant’s (as the claimant’s) application to review the said decision was subsequently dismissed as well.  The defendant’s (as the claimant’s) application for leave to appeal in the Court of First Instance was also dismissed on 3 October 2014.  On 22 October 2014,  the defendant (as the claimant) further applied for an adjournment for hearing without good grounds, the application was dismissed again.

34. Suffice to say, even if SCTC 47483/12 is considered in this appeal, it would not prevent the action to be set down for trial.  The present action was commenced on 5 July 2013 and the defendant filed an acknowledgement of service on 15 July 2013.  Both parties must have full knowledge that the two are related actions with same facts.  Had it been the decision of the parties that no transfer application is necessary, the present action should be set down for trial.

Conclusion

35. It is appropriate to set this action down for trial, the decision of Master SP Yip should not be interfered. I dismiss the defendant’s appeal against the decision of Master SP Yip made on 11 September 2014, with costs to the plaintiff, to be taxed if not agreed.