YAN QING YUAN LTD v. FARLIM GROUP (CHINA) LTD AND OTHERS

HCA 70/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 70 OF 2010

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D E C I S I O N

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1. This is the plaintiff’s application for joinder of a 4th defendant and to make a claim again him for breach of warranty of authority of an agent of the 1st and/or 3rd defendants. This is an alternative to the claim against the 1st and/or 3rd defendants for agency commission.

2. This action was started on 19 January 2010.  The trial will commence on 15 November 2012 and is fixed for 11 days.

3. This proposed claim against the proposed 4th defendant is an obvious one.  I also raised it at the PTR on 13 August 2012. Counsel for the plaintiff then advised the court that this claim was not pursued against the proposed 4th defendant for tactical reasons.  The plaintiff however issued the summons on 7 September 2012 to apply for joinder of the proposed defendant and to make this alternative claim.

4. The 2nd defendant has indicated his consent to this application.

5. The 1st and 3rd defendants are opposing.  The 1st defendant has raised various grounds of objection.

6. However, I think the real ground that can sustain the opposition is the matter of delay.  The proposed 4th defendant is a resident of Malaysia and there are only about 50 days from now until the commencement of the trial as scheduled.  I do not propose to move the milestone trial date by allowing this application as this application was not made until now for tactical risks.  I do not think the remaining 50 days would be enough for effecting service on the proposed 4th defendant in Malaysia and to give him a proper opportunity to prepare for the trial.

7. Hence on this ground alone, I would dismiss the application.

8. I would also order costs against the plaintiff and in favour of all three existing defendants.  However, I do not think this application amounts to an abuse of process.  I do not propose to order costs on the indemnity scale.  I order costs on the usual party and party basis and I also direct the 1st, 2nd and 3rd defendants to file their bills of costs within next 7 days and the plaintiff to file the lists of objections within the 7 days thereafter.  After all bills and objections are filed, I will proceed to assess the costs summarily and the costs as assessed shall be payable forthwith. 

9. This is a simple application.  I do think it warrants the attendance by leading counsel.  I think a counsel of say 10 years standing would be appropriate.  I therefore did not order certificate for two counsel.