PRIMECREDIT LTD v. HON WAI KAN

DCMP 2179/2015
DCCJ 2251/2011
(Heard together)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2179 OF 2015

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2251 OF 2011

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DECISION

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1.  The issues before me are the costs of the application made in the plaintiff’s solicitors’ letter dated 22 May 2017 (“the plaintiff’s application”) and the costs of the joint application as set out in the intended intervener’s solicitors’ letter dated 17 July 2017 (“the joint application”).

Background

2.  The aforesaid 2 applications stem from the decision made by DDJ S H Lee in the hearing on 6 January 2017.  Reasons for the decision have been handed down by the deputy judge on 11 January 2017 (“the Reasons”).  The decision made by the deputy judge, as well as the background and the reasons for the decision, have been clearly set out in the Reasons and I shall not repeat the same herein.  For ease of reference, unless otherwise specified, the abbreviations used in the Reasons are adopted in this decision.

3.  After the hearing before the deputy judge, the intended intervener made the following attempts to try to find out the whereabouts of the defendant:-

(a)  In January 2017, the intended intervener checked with her sister living in Hong Kong to see whether she had the means of contacting the defendant.  Her sister had no idea as to where the defendant currently lived, and could only give the intended intervener an address which was the defendant’s last known address.

(b)  In February, the intended intervener went to that address twice but could not find the defendant.

(c)  In February, the intended intervener went to the Mainland to visit her mother to try to find out the means to contact the defendant.  However, the mother told the intended intervener that she had no contact with the defendant for a long time and could not help the intended intervener.

(d)  Also in February, the intended intervener visited her another sister who was living in the Mainland.  That sister also did not know the whereabouts of the defendant.

(e)  In March, the intended intervener tried to contact the defendant’s wife by dialing her mobile number.  The intended intervener managed to reach the defendant’s wife but was told that the defendant had already separated with the wife, and the defendant’s business was none of the wife’s business.

(f)  From 20 March onwards, the intended intervener tried to contact the defendant by calling his mobile number but at no avail until 28 March 2017.  On 28 March 2017, the intended intervener managed to reach the defendant over the phone but the defendant refused to reveal his current address.

(g)  On 31 March, the intended intervener in her solicitors’ office gave a call to the defendant.  The defendant did not pick up the call from the intended intervener’s mobile phone.  When the intended intervener used another phone to call the defendant, the defendant picked up the call.  The intended intervener told the defendant that some documents had to be served on him and asked him to attend the intended intervener’s solicitors’ office to pick up the documents.  The defendant refused and asked the intended intervener not to call him again.

(h)  The intended intervener called the defendant’s wife again, but was again informed that the wife did not know the whereabouts of the defendant.

4.  On 5 April 2017, the intended intervener took out ex parte applications for substituted service in DCCJ 2251/2011 and DCMP 2179/2015.

5.  From 13 March 2017 onwards, there was correspondence passing between the plaintiff’s solicitors and the intended intervener’s solicitors concerning the service of the necessary documents (“the documents”) identified in the Reasons. 

6.  On 22 May 2017, the plaintiff’s solicitors wrote to the court and said:-

“We note that more than 4 months have passed but the Intended Intervener still has not been able to serve the said documents on the Defendant. Notwithstanding that the intended intervener claims that she is now applying for substituted service, we consider that such long delay has been greatly prejudicial to our client’s rights and interests in the Property and thus further procrastination is unacceptable.

With a view to prevent further delay and having regard to the underlying objectives of the CJR, we humbly ask for the said hearing be restored in order to seek the Court’s directions on how the case should proceed.” (underline in original)

7.  On 23 May 2017, the intended intervener wrote to the court and told the court what the intended intervene had done in order to effect service of the documents on the defendant.

8.  On 29 May 2017, DDJ S H Lee ordered that the hearing be restored before a judge for directions.  The restored hearing was fixed to take place on 3 August 2017 before me.

9.  On 28 June 2017, master M Lam granted the intended intervener’s application for substituted service in DCCJ 2251/2011.

10.  On 6 July 2017, I gave the order for substituted service sought by the intended intervener in DCMP 2179/2015.

11.  On 17 July 2017, the plaintiff and the intended intervener jointly applied to the court for vacating the hearing on 3 August 2017, and costs of the plaintiff’s application and the costs of the joint application be dealt with by written submissions.

12.  On 18 July 2017, I directed that the hearing on 3 August 2017 should stand.  As the defendant is a party in these proceedings and would be served with the notice of the hearing by substituted service, it would not be appropriate for me to vacate the hearing on 3 August 2017 without the defendant’s consent or submissions.

13.  On 21 July 2017, service of the notice of this hearing and the documents on the defendant was done by the intended intervener pursuant to the aforesaid orders for substituted service by putting up a notice on newspapers.

The plaintiff’s submissions

14.  Mr Chan, solicitor for the plaintiff, seeks indemnity costs against the intended intervener in respect of the costs of the plaintiff’s application and the costs of the joint application.  Mr Chan submits:-

(a)  There is a substantial delay by the intended intervener in making the applications for substituted service.  The delay is unreasonable and inexcusable.

(b)  From March to May 2017, the plaintiff had requested the intended intervener to update the progress of service on a monthly basis.  However, the intended intervener only gave brief and general reply every time.

(c)  After more than 4 months, the intended intervener was still unable to give a definite answer as to the time when the service could be completed. Accordingly, it would be necessary for the plaintiff to make the application on 22 May 2017 to restore the hearing for directions.

(d)  &The substantial delay has greatly prejudiced the plaintiff’s interest.

The intended intervener’s submissions

15.  Mr Ken To, counsel for the intended intervener, suggests that costs of the plaintiff’s application and costs of the joint application should be ordered against the plaintiff.  Mr To submits:-

(a)  The intended intervener has all along kept the plaintiff updated as to the effort made by her in finding out the whereabouts of the defendant.

(b)  By the time the plaintiff took out the plaintiff’s application, the plaintiff knew full well that the applications for substituted service had been taken out and the intended intervener had prepared answers to the requisitions raised by the court.

(c)  The intended intervener had to wait for the outcome of the applications for substituted service.

(d)  The intended intervener has not done or failed to do anything causing delay of the service of the documents on the defendant.  It is unreasonable and unnecessary for the plaintiff to apply for restoring the hearing.

My view

16.  With respect to Mr Chan and Mr To, I am of the view that neither of them is entirely correct.

17.  I do not accept Mr Chan’s submissions that the intended intervener has substantial delay in serving the documents on the defendant.  Having read the correspondence passing between the plaintiff’s solicitors and the intended intervener’s solicitors and the affidavit evidence filed by the intended intervener in the applications for substituted service, the facts mentioned in Mr To’s submissions are supported by evidence.  In the light of those facts, in my judgment, it cannot be said that the intended intervener has done or failed to do anything causing delay of the service of the documents on the defendant.

18.  At the same time, I do not accept Mr To’s submissions that the plaintiff’s application is unreasonable and unnecessary.  The plaintiff’s application is to restore the hearing for directions.  The plaintiff has already obtained a final judgment against the defendant in DCCJ 2251/2011.  If the appeal, the time summons and the evidence summons are determined in the plaintiff’s favour, the challenge raised by the intended intervener would have come to an end.  Obviously, the plaintiff intends to see finality in these matters, and the plaintiff is indeed entitled to have finality as soon as practicable.  These matters could not be determined in the hearing on 11 January 2017 solely because the intended intervener had overlooked to effect proper service of the documents on the defendant.  After waiting for more than 4 months, when the intended intervener could not advise when the service of the documents could be properly done, the plaintiff made an application to restore the hearing for directions.  In my judgment, in these circumstances, the plaintiff cannot be criticized in making the plaintiff’s application.  The plaintiff merely wants to seek directions from the court so that everyone would know what should be done by whom before when for the purpose of bringing forward the proceedings.

19.  In my view, both the plaintiff’s application and the joint application are for the purpose of bringing forward the proceedings relating to the appeal.  The costs of these 2 applications (including the costs of this hearing) should be in the cause of the appeal.

Disposition

20.  For the reasons above, I order that the costs of the plaintiff’s application and the costs of the joint application (including the costs of this hearing) be in the cause of the appeal.   I further direct that the substantive hearing of the appeal, the time summons and the evidence summons be fixed before a judge in chambers with 1 day reserved, in consultation with counsel’s diaries.

21.  I thank Mr Chan and Mr To for the helpful assistance provided to the court.