CHU KAN WING v. HA PO YING the administratrix of the estate of CHU SIU WING, DECEASED

DCMP 2565/2018

[2018] HKDC 1514

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2565 OF 2018

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DECISION

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1.  This call-over hearing of the originating summons issued by the plaintiff has been scheduled to take place at 9:30 am today. Due to the absence of any representative from the defendant’s solicitors this morning, I adjourned the hearing to 3:30 pm.

2.  The plaintiff in these proceedings seeks an order for sale of a property jointly owned by him and the estate of Chu Siu Wing (“the Estate”).  On 7 November 2018, the defendant filed a notice of intention to defend.  The defendant was acting in person at that time.

3.  On 5 December 2018 (ie yesterday), the following events took place in the afternoon:-

(1) Jim & Co. filed a notice to act, in which they stated that they were the solicitors for the defendant in these proceedings.

(2) Jim & Co. filed a consent summons (“the consent summons”) signed by them and the plaintiff’s solicitors, in which the parties jointly sought directions to vacate the hearing today and to file affirmations.

(3) After seeing the consent summons, I did not make an order in terms of the consent summons.  The court has notified the parties by phone that they should attend the hearing today as scheduled.

(4) At about 5:34 pm, Jim & Co. sent a letter to the court by fax (“the 1^st letter”, which only came to my attention this morning), in which they said:-

“We act for [the defendant].

Since our handling solicitor Mr. Jim shall be engaged in another hearing on 6 December 2018 at 9:30 am at Tuen Mun Magistracy, he cannot attend the said hearing for [this action].

Thank you for your kind attention and please inform the Honourable Judge to excuse our absence.”

4.  Today, at about 9:09 am, Jim & Co. sent another letter to the court by fax (“the 2^nd letter”), in which they said:-

“We act for [the defendant].

Since our handling solicitor Mr. Jim shall be engaged in another hearing on 6 December 2018 at 9:30 am at Tuen Mun Magistracy, he cannot attend the said hearing for [this action].

Since the parties signed [the consent summons] to propose certain agreed directions, we shall be obliged if the learned judge may grant order in terms of such agreed directions.

Please inform the learned Judge to excuse our absence at the hearing on 6^th December 2018.”

5.  In the hearing this morning, only Mr Yeung for the plaintiff attended the hearing.  No one from Jim & Co. was present.  I adjourned the hearing to 3:30 pm.  Notice of the adjourned hearing has been immediately given to Jim & Co. by fax after the hearing in the morning.

6.  Notwithstanding the consent summons, I am of the view that the call-over hearing should still be held as scheduled.  The defendant has never indicated her defence to the plaintiff’s claim.  Depending on the position taken by the defendant, I may have to direct this action to continue as if the same had been begun by writ, and the parties should prepare pleadings accordingly.  These are matters to be sorted out in the call-over hearing.

7.  I have not vacated the hearing scheduled at 9:30 am today.  I have never given permission to anyone not to attend the hearing.  Jim & Co. cannot simply treat the consent summons, the 1^st letter, or the 2^nd letter as a licence allowing them not to attend the hearing.  I note that there are several solicitors in their firm[1]. Knowing that Mr Jerry YM Jim cannot come to this court this morning, they should send another solicitor or brief counsel to take care of the hearing today.  If for some reason they can send no one to attend the hearing, they should simply not to take up the case in the first place. 

8.  Mr Jim is here in the afternoon. After hearing the parties, I am of the view that this action should proceed as if the same had been begun by writ.  I give the following directions:-

(1) The proceedings herein be continued as if the cause or matter had been begun by writ.

(2) Leave to the plaintiff to file and serve a statement of claim within 28 days.

(3) Leave to the defendant to file and serve a defence (or a defence and a counterclaim) within 28 days thereafter.

(4) Leave to the plaintiff to file and serve a reply (or a reply and a defence to the counterclaim) within 28 days thereafter.

(5) Leave to the parties to withdraw the consent summons dated 5 December 2018, with no order as to costs on the consent summons.

9.  Most of the time today has been spent on dealing with the absence of Jim & Co. in this morning.  The absence cannot be explained by any reasonable excuse.  I order that 80% of the costs of the hearing today (both the morning session and the afternoon session) be paid by Jim & Co. personally to the plaintiff forthwith on indemnity basis, and those costs are summarily assessed at HK$1,800.  For avoidance of doubt, the remaining costs are reserved.

10.  I regret to say that the absence of Jim & Co. this morning without any permission from the court is a disrespect to the court.  I direct

that a copy of this decision be sent to the Law Society for their consideration and action.