WAH FUNG FOREST RESOURCES LTD v. WONG CHOR CHEUNG

HCA 804/2015, 1834 & 1835/2016 (Consolidated)
(Heard together with HCMP 3/2016)
[2019] HKCFI 2133

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 804 OF 2015

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1834 OF 2016

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1835 OF 2016

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(Consolidated by Order of Master K Lo dated 28 June 2017)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3 OF 2016

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(Heard together)

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D E C I S I O N

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1.  I have before me two summonses in HCMP 3/2016 and the consolidated actions of HCA 804/2015, HCA 1834/2016 and HCA 1835/2016 respectively, both dated 31 January 2018, seeking an order that these two sets of proceedings be heard together.

2.  I have decided to refuse the application because, basically, it is far too late.  The summonses were only taken out on 31 January 2018 and this 9:30am appointment this morning was originally scheduled only for the pre‑trial review of HCMP 3/2016, which is going to trial on 4 June 2018 with three days reserved. 

3.  Counsel have helpfully set out the chronology of the proceedings, which I will not repeat.  Even assuming there had been some lack of progress on the plaintiff’s part in the three derivative actions, they had plainly become active by April 2017.  In fact, there was an order for consolidation of those three actions in June 2017, but the defendant, Mr Wong Chor‑cheung, did not then apply for an order that HCMP 3/2016 be heard together with those derivative actions until he took out the summons on 31 January 2018.

4.  Meanwhile there were also attempts by Mr Wong to delay the progress of HCMP 3/2016 (see my decision on 19 May 2017, making an unless order for the exchange of witness statements).  Despite an application to set down that action, nothing was said by Mr Wong about any application to have that action conducted in parallel with any other proceedings until the present summonses.

5.  It is now suggested that that was because Mr Wong had defaulted in properly opposing the consolidated derivative actions and had to apply for an order to set aside the default judgment and for leave to file a defence, which order he did not get until 10 January 2018.  It is difficult to imagine a less meritorious excuse.  It certainly does not justify the delay in the present application.

6.  Ms Wong, who appeared for Mr Wong this morning, realistically accepted that the orders sought, if granted, would necessitate vacating the trial date of HCMP 3/2016 in June. 

7.  In my view, what is put forward here does not come near the kind of exceptional circumstances that would justify vacating the milestone trial dates.  I do not see why Mr Cheung, the plaintiff in HCMP 3/2016, should have to tolerate the serious prejudice of having his claim tried in many months, if not years, later.

8.  In my view, the nature of the claims in the two sets of proceedings are quite distinct and different.  While there is some overlap in the pleaded issues concerning directorship of the company, there is no rule that, merely because there is some common question of fact or law, it would be proper to order consolidation. 

9.  The common questions, in any event, seem to me to be but a small part of the derivative actions.  As I see it, HCMP 3/2016 is a relatively short and straightforward action and has a prospect of being resolved soon, after a short trial.  There is much to be said for not overloading it with other extraneous issues from the derivative actions, especially at this late stage.

10.  Mr Wong is the only witness at the moment for the defence in HCMP 3/2016 and is alleged to be the person who in reality controls the company.  As Ms Wong recognises, Mr Wong may well be held to be privy to the cause there, with the result that any relevant findings in HCMP 3/2016 would give rise to issue estoppel in the derivative actions, so that the risk of having to re‑litigate similar issues and the risk of inconsistent findings have not been properly substantiated to my satisfaction.

11.  In these circumstances, I think it is quite clear that the application should be refused, so the summonses will be dismissed.