SHI LING YEE v. NUMERIC CITY LTD

DCCJ 1347/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1347 OF 2013

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DECISION

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1.  This is a decision on costs of the defendant’s summons filed on 3 July 2014 (“the summons”).

2.  The plaintiff claimed possessory title against the defendant of a property known as 5^th floor and roof of No 16 Yiu Wa Street, Hong Kong (“the Property”). 

Events leading to the defendant’s summons

3.  On 12 June 2014, directions for setting down the action for trial had been sought in a case management conference (“CMC”), trial was fixed in late November this year.  Amongst other things, leave was granted to the defendant to adduce a valuation report prepared by Mr Keith LH Liu of RHL Surveyors Limited dated 18March 2014 on the market rental value of the Property.

4.  In the CMC, Mr Yeung, solicitors for the plaintiff indicated that the plaintiff will disclose (i) her medical records from the Hospital Authority and (ii) documents she has obtained from the Rating and Valuation Department (“the Department”) in due course.  Mr Yeung explained, the documents from Department were obtained for the purpose of rebutting the defendant’s expert opinion on valuation of the market rental value of the Property.  Mr Yeung made no attempt to state or estimate as of when such medical reports and documents would be disclosed.

5.  In view of clarifying the time and scope of disclosure, Mr Ho, solicitors for the defendant inquired with the plaintiff, immediately after the CMC on 12 June 2014, in his letter dated the same day (“the defendant’s letter”):-

“We refer to the submission made by your Mr Yeung to the Court this afternoon’s CMC hearing that you have obtained certain information from the Rating and Valuation Department to rebut out client’s expert report at trial.

Please disclose those information and relevant documents to us by way of filing and serving a supplemental list of documents within the next 14 days, otherwise we shall apply for an order for specific discovery of the same and seek costs without further notice.”

6.  The plaintiff did not respond to the said letter.

7.  On 3 July 2014, which is 21 days after the defendant’s letter, the defendant took out a summons for an order for specific discovery that the plaintiff to file an affidavit for documents that she has obtained from the Department.

8.  On 17 July 2014, the plaintiff filed a supplemental list of documents disclosing the documents that the plaintiff has obtained from the Department (be it not in form of an affidavit).

9.  On 25 July 2014, on the return date of the summons, I am given to understand that the defendant was satisfied with the documents disclosed in the plaintiff’s supplemental list of documents, the defendant applied for leave to withdraw the summons with costs.  The plaintiff opposed.

The defendant’s submissions

10.  Mr Ho submitted, the summons could have been avoided had the plaintiff replied promptly to the defendant’s letter.  It is prudent for the defendant to inquire from the plaintiff of the intended disclosure of documents when trial dates, which are milestone dates, had been fixed.

11.  The category of documents was made to challenge Mr Liu’s opinion on the market rental value of the Property, and in event the defendant finds it necessary and appropriate to compile a supplemental expert report, it could seek leave at an earlier stage without disturbing the trial dates.  Bearing in mind, the trial is 5 months away from the CMC.

12.  Mr Ho explained, albeit he agreed the documents obtained from the Department are information within the public domain, the plaintiff did not mention the specific documents that she has in her possession, custody or power in the CMC.  As there are an abundance of documents available for download from the Department’s website, it is unknown to the defendant of the exact documents that the plaintiff is going to rely on at trial.  The defendant is entitled to clarify with the plaintiff of the specific documents that she intended to disclose.

13.  The defendant issued the summons on 3^rd July 2014 in absence of response from the plaintiff’s solicitors, on 17 July 2014, the plaintiff filed a supplemental list of documents on disclosing the documents requested in the summons.  It is reasonable for the plaintiff to withdraw the summons with costs.   

The plaintiff’s submissions

14.  Mr Yeung opposed.  He submitted, the summons should not be taken out because plaintiff has failed to comply with Order 24 rule 7 of the Rules of District Court, Cap 336H, namely, to state the specific documents requested.

15.  Secondly, Mr Yeung has indicated to the CMC master that the plaintiff will disclose her medical reports together with documents obtained from the Department.  Mr Yeung said, as he is still waiting for the plaintiff’s medical reports from the Hospital Authority, for the purpose of saving costs, the plaintiff intended to make discovery of all documents by filing one supplemental list of documents. 

16.  Thirdly, the documents from the Department can be obtained from its website, it is unnecessary for the defendant to seek an order for specific discovery by way of the summons.

17.  Mr Yeung further submitted, as he finds the plaintiff’s inquiry by way of the defendant’s letter was misconceived, he owed no duty to respond to the defendant.

Discussion

18.  Order 24 rule 7 of the Rules of District Court reads:-

“Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power, and, if not then in his possession, custody or power, when he parted with it and what has become of it.” [emphasis added]

19.  The application is premised on the submission by Mr Yeung at the CMC.  The defendant is seeking “any documents obtained from the Rating and Valuation Department in relation to the market rental of the Property”.  I agree with Mr Ho that there are an abundance of documents that could be obtained from the Department.  What the defendant is seeking discovery from the plaintiff are the documents that she has already obtained. I am satisfied the defendant’s application came with precision as stipulated in Order 24 rule 7.

20.  I could not criticize Mr Ho’s application. Trial dates have been fixed, in event supplemental expert report has to be obtained in light of the newly disclosed documents, it could have been done within the 5-month period, with lesser chance of disturbing the milestone date.

21.  Finally, Mr Yeung elected not to respond the defendant’s letter, he explained he owed no duty to the defendant to point out the flaw in his application. It is unusual for a party to be silent on correspondence when notice of issuing a summons is contained. Simple clarification by way of letter might have disposed of the plaintiff’s inquiry. Mr Ho had already delayed the issuance of summons for 21 days. I fail to see the summons was taken out unjustifiably.

22.  This is suitable case that to costs should be awarded to the defendant. I grant the following order:

(i) the summons be withdrawn;

(ii) costs of the summons be paid by the plaintiff to the defendant in any event, to be taxed if not agreed, and

(iii) the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.