CHAN CHI NGON v. HUNG LING CHUN FELICIA

HCA16885/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.16885 OF 1998

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D E C I S I O N

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The appeal

1. The plaintiff had issued a summons asking for, among other things, the following relief :

1) Kurena Inc. be added as a 2nd plaintiff in the action;

2) leave to amend the Amended Statement of Claim; and

3) costs of the application be in the cause.

2. The Registrar granted an order in terms of the summons but ordered the costs of the application be the defendant's costs be in the cause. The defendant now appeals against the order. She asks for the order to be set aside. In essence this is an appeal against the costs order. The crucial costs order that the defendant now asks for is that the plaintiff may have leave to join Kurena Inc. as a co-plaintiff on condition that he pays the defendant the costs thrown away due to his refusal to accept the defendant's invitation (made as early as February 1999) to join Kurena Inc. as a co-plaintiff, such costs to include, in particular, all costs incurred in the defendant's failed application to strike out the plaintiff's claim on the ground that he should have joined, among other things, Kurena Inc. as a co-plaintiff.

Invitation to join

3. The present action was commenced on 7 October 1998. Two years and four months after the commencement, the plaintiff now seeks to join a 2nd plaintiff in this action. Mr Miu, counsel for the defendant, submitted that the defendant had invited the plaintiff to join the 2nd plaintiff as early as February 1999. He referred to the note he wrote to counsel in which he referred to a draft summons which would be issued. The note stated that one of the relief was to strike out the Statement of Claim on the ground that it disclosed no reasonable cause of action. The note further stated that :

".... the real purpose is to get the two companies to be joined as plaintiffs and to get an order for security for costs."

One of the companies referred thereto is Kurena Inc. It is not necessary for me to deal with this note. As it turned out, a summons was issued seeking a striking out of the Statement of Claim, alternatively, for an order that the action be allowed to continue on conditions that Kurena Inc. and another limited company be substituted and/or added as the plaintiff and upon such joinder the plaintiffs have to provide security for costs.

The plaintiff's position

4. After the summons was issued, the plaintiff amended his Statement of Claim. The summons was heard by Suffiad J. At the hearing, the defendant abandoned the alternative claim for the joinder. Suffiad J dismissed the defendant's application to strike out and ordered costs of the application to the plaintiff with certificate for two counsel.

5. As summarized in the judgment of Suffiad J, the position of the plaintiff was that Kurena Inc. was only acting as an agent for the plaintiff. The plaintiff also stated that if there was any ambiguity as to the basis of the plaintiff's claim originally, these ambiguities had been removed by the Amended Statement of Claim. The plaintiff had also, in an affirmation dated 17 January 2000, stated that Kurena Inc. would not make any claim on the claims of the plaintiff.

6. The position is that at the date of the hearing before the learned Judge, the plaintiff had clearly taken a stance that he was the proper plaintiff in this action. In the latest amendment, Kurena Inc. is now claiming as an alternative party against the defendant for various sums of money. Hence, ultimately there will be only one plaintiff who may succeed in this action.

The practice

7. The practice regarding costs on joinder of a plaintiff is summarized at paragraph 15/6/17 of the Hong Kong Civil Procedure 2001 (see also paragraph 15/6/18 of the Supreme Court Practice 1999) :

"Terms as to amendment of parties-On giving leave to amend as to parties, the Court may impose such terms as may be just having regard to all the circumstances.

Amendment is an indulgence, and the applicant will generally have to pay the costs of and occasioned by the amendment. But in cases of adding a plaintiff, the plaintiff may be ordered to bear all the costs of the action up to the time of the joinder of the added plaintiff. Thus in Ayscough v. Bullar (1889) 41 Ch.D.341, the terms were that if on the trial it appeared that the first plaintiff was not entitled to maintain the action, and that the added plaintiff was so entitled, the first plaintiff must pay the costs of the action up to the time of the joinder of the added plaintiff, ...."

The earlier costs order

8. In my view, a costs order on the lines of Ayscough v. Bullar should be adopted in the present case. This will be in the form of a conditional order because obviously who is a proper plaintiff can only be determined at the trial. However, even if I grant an order along the lines as indicated earlier, there really is no room to disturb the costs order made by Suffiad J. This will tantamount to reversing the order which can only be made by the Court of Appeal. Suffiad J was dealing with an application to strike out, the merits of the application must be considered at the time when the matter was before him.

9. Mr Miu submitted that his application is not a variation of the learned Judge's order but merely ordering the plaintiff to pay the sum of money that the defendant was required to pay to the plaintiff as a result of the costs order. He submitted that this is akin to the Bullock or Sanderson Orders that the court may impose. I disagree. In my view, the substance of the application is for a variation of the costs orders already made between the two existing parties of the action.

Conclusion

10. As the hearing before the Registrar was listed for three minutes, he was not presented with the arguments that have been presented to me today. I do not need to disturb the other orders made by the Registrar. I will set aside the order of costs by the Registrar and make the following order :

1) If on the trial, it appears that the 1st plaintiff is not entitled to maintain the action and that the 2nd plaintiff is so entitled, the 1st plaintiff must pay the costs of the action up to the time of the joinder of the 2nd plaintiff, other than costs order that had already been made in this action.

2) The costs of the application to amend and the costs of the consequential amendment be to the defendant in any event.

3) The costs of the hearing before the Registrar is not disturbed, namely it will be the defendant's costs in the cause.

4) The defendant is to have half of the costs of the appeal in any event.