LUI CHE WOO v. WONG SI LING

HCA 13805/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 13805 OF 1997

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REASONS FOR DIRECTIONS

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1. I had ordered yesterday for a trial of the issue as to whether there is a binding settlement agreement between the parties. The issues now arise for determination are the timing of the trial and the directions to be given for this trial of an issue.

2. The guiding principle at this stage must be to preserve the status quo of the parties and not to in any way pre-judge the outcome of the trial of the issue. And if the Court is to err, it should err on the cautious side.

3. The first issue that arises is whether Mr Liu cannot indeed be available before 10 May 2000 as he contends or that he can apply for leave to attend court before that date as the plaintiff suggests. The evidence in this regard are both hearsay. It is not appropriate to prefer one version to another simply on the basis of the affidavit evidence filed since they are both hearsay. Equally, it is unsatisfactory nor conducive to good case management to seek further evidence for the purpose of resolving this point. The costs and time involved will be out of proportion to the nature of the fact in dispute, it being a peripheral point. As I had said, the Court should opt to err on the cautious side, and on that basis, I am prepared to consider the matter on the assumption that Mr Liu cannot realistically be expected to attend Court before 10 may 2000.

4. It then brings us to the question of when the trial of the issue should take place. Miss Eu had suggested that this can be during or after the main trial. If it were during the main trial, as I commented yesterday, the trial will have to go part-heard to accommodate Mr Liu's availability and that would not be desirable. If it were to be after the main trial, the effect is that the parties will have to be put to the costs and trouble of a full trial irrespective of the outcome of the trial on the issue. And if the defendant were to succeed at the trial of the issue, he would be deprived of the fruit of that trial. The paramount concern at this stage being to preserve the status quo, the trial of the issue will have to take place before the trial of the main action.

5. Having ascertained the position of the Court diary and counsel's diaries, the trial of the issue is set down for 26 to 28 June 2000. The trial of the main action is to take place after 28 June 2000, on an early date to be fixed in consultation with counsel's diaries with 5 days reserved. Parties had indicated that they had no objection to the trial of the issue and the trial of the action being dealt with by the same judge, although the determination of the issue will involve the Judge making findings on the credibility of the parties.

6. As the trial of the issue is to take place some time in the future, there will be an interim stay of the action on the condition that the defendant pays into Court within 7 days from the date hereof the sum of $2 million, being an estimate of the plaintiff's costs of the action up to date. This condition was requested by the plaintiff and Mr Chan who appeared for the defendant had indicated that he had no submission to make on it. The sum paid into Court will be kept in an interest bearing account.

7. As to the costs of 8 March and today, they will be reserved and to be dealt with at the conclusion of the trial on the issue.

Conclusions

8. The directions I made are as follows :

(1) The trial of the issue regarding whether there is a binding settlement agreement will take place on 26 to 28 June 2000.

(2) The parties be at liberty to forthwith fix a date for the trial of the main action with 5 days reserved. The date is to be fixed on an early date after 28 June 20000 in consultation with counsel's diaries.

(3) Subject to paragraph (2) above, there be an interim stay of the action pending the trial and determination of the issue on the condition that the defendant pays into Court within 7 days from the date hereof the sum of $2 million, being an estimate of the plaintiff's costs up to date. The said sum is to be kept in an interest bearing account.

(4) The costs of 8 and 9 March 2000 and the costs thrown away be reserved and to be determined at the trial on the issue.