XCHRX CITILAND REALTY CO. LTD. v. WONG KA KEI

HCA 8983/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 8983 OF 2000

_______________

___________

R U L I N G

___________

1. The Plaintiff's summons of 15 December 2000 (which was drafted in very poor English and I doubt can have been approved by a solicitor) should never have been taken out.

2. Although in his affirmation of 27 October 2000, Wong Pak Wai of the Plaintiff's solicitors affirmed that the writ had not been returned by the Post Office, it is apparent from a letter subsequently received by the Defendant's solicitors from the Post Office that the writ had been returned to the Plaintiff's solicitors, Messrs Lam & Lau, on 17 October 2000. A chop of their firm had been affixed to the receipt.

3. I find that the costs of the hearing on 12 January are entirely attributable to the conduct of the Plaintiff's solicitors. They had received a faxed letter from the Defendant's solicitors late on 9 January 2001, informing them that the Defendant had never received the writ. There was ample time for them to agree that the hearing fixed for the 12 January be adjourned. However in their reply of 10 January 2001 not only did they repeat the erroneous assertion that the writ had not been returned by the Post Office - but they requested the Defendant's solicitors to file a Notice to Act and attend the hearing on 12 January. There was no suggestion on their part that the hearing be adjourned by consent in order an enquiry be made as to whether the writ had been served.

4. Their conduct therefore necessitated the filing of the 1st affirmation of the Defendant and the attendance of the Defendant's counsel and solicitor before me on 12 January.

5. In so far as the costs of today are concerned the Plaintiff's solicitors, although suggesting that the summons be withdrawn, did not do so on the basis that the Plaintiff should be responsible for the costs of 12 January. The Plaintiff's solicitors failure to respond favourably to the suggestion in the Defendant's solicitors' letter of 23 February 2001 has led to the costs of today being incurred.

6. I am satisfied that the Defendant's costs of and incidental to the Plaintiff's summons of 15 December including the costs of 12 January 2001 and today be taxed and paid by the Plaintiff with certificate for counsel in respect of the two hearings. Mr Yip for the Plaintiff has undertaken that any order for costs made against the Plaintiff will be met by his firm. There is therefore no reason for me to consider the question whether an order should be made directly against his firm under Order 62 rule 8.