LEUNG KWONG KUEN v. CHAN PO WING

HCA 1177/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1177 OF 2012

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R U L I N G

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1.  There are 2 applications before me: summons by the plaintiff by counterclaim, Chan Po-wing, for leave to amend the defence and counterclaim; and an application by the defendant for costs, arising out of the plaintiff’s summons to revive the claim.

Summons for leave to amend

2.  I have heard the grounds in opposition delivered by Mr Fong, counsel for D2 and D3, and also the original plaintiff.  The grounds put forward are, in my view, misconceived. 

3.  Firstly, despite withdrawal of the plaintiff’s claim, a counterclaim can still proceed.  Under Order 15 rule 2(3) of the Rules of the High Court, it is not necessary for Chan Po-wing to commence a fresh action, nor is it an abuse of process by him to proceed on the counterclaim. 

4.  Secondly, Mr Fong opposes to the nomenclature as to the identity of the parties in the proposed amendments.  That, in my view, is not a valid ground for opposition to an amendment.  At best, it is a complaint on bad drafting.  However, in my view, it is not even bad drafting in the present case.  At the time when Chan Po-wing put forth the draft re-amendments to his defence and counterclaim, the plaintiff was seeking revival of his claim by summons.  Chan Po-wing could not be blamed for thinking that the statement of claim would be relied on at the end of the day. 

5.  In any event, if the plaintiff has genuinely considered the reference to the parties as confusing, he could have just pointed that out, and confirmed that he would not rely on the statement of claim and ask for revision of the draft re-amendments. 

6.  In any case, the grounds of opposition cannot be advanced on behalf of D2 and D3 to the counterclaim. 

7.  The grounds in opposition are misconceived.  However, in the course of discussion with counsel, I have pointed out to Ms Gwilt and Ms Lam, counsel for Chan Po-wing, that since the plaintiff has confirmed that it would not revive the claim, the amendments can be further improved.  This is because paragraphs 1 to 35 of the re-amendments appear to be distinct paragraphs that can stand on their own without denying the relevant paragraphs in the statement of claim. 

8.  Likewise, paragraphs 36 to 44 of the re-amendments appeared to be unnecessary, since the statement of claim is dropped.  Ms Gwilt has sensibly agreed to delete all references that deny the statement of claim, and therefore I give leave to Chan Po-wing to further revise his re-amendments within three days.  This, I believe, will facilitate the judge’s reading of the pleadings, and focus the issues better.  I therefore will give leave to amend when I see this revised draft, the revision of which is limited to what I have said in this paragraph. 

9.  In principle, the costs of and incidental to the amendments shall be to D2 and D3.  This will cover costs arising out of the further revision which will come three days later.  That, I think, will provide sufficient protection to D2 and D3’s costs.

10.  As for the costs of this hearing, Ms Gwilt asks for costs, which is opposed by the plaintiff and D2 and D3.  With the greatest respect, the position of the plaintiff and D2, D3 have been vacillating in the correspondence and even today.  As of 9 December, the plaintiff had indicated that the claim would not be revived, but still complained that Chan Po-wing’s pursuit of the counterclaim against parties who were not parties in the original main action would amount to an abuse of process, which complaint was unjustified. 

11.  Three days later, they said they would agree to the defendant’s application for amendment.  They even asked for a draft consent summons.  When a draft consent summons was given to them, they did not consent, and argued substantively grounds in opposition today.  It transpired that the only thing they disagreed with the consent summons was on costs. 

12.  In my view, it was a complete waste of time to make those substantive grounds in opposition.  If disputes between parties are on questions of costs only, that could be resolved either by way of correspondence, or paper disposal, or even a short hearing before the court. 

13.  In my view, taking all circumstances into account, insofar as the costs of today’s hearing are concerned, it ought, legitimately, be to Chan Po-wing. The appropriate amount on summary assessment is $25,000.  These orders will not take effect until I see and approve the further revision to the draft counterclaim.  I therefore adjourn the summons for leave to amend to Tuesday, when I will dispose of it on paper.  The further revision should come in, and should be filed and served by 4 pm on that day. 

Costs on the summons to revive the claim

14.  The summons was not pursued by the plaintiff after I pointed out to them that the unless order had taken effect.  Costs therefore should follow the event and be to Chan Po-wing.  However, I do not see sufficient basis to grant indemnity costs.  I therefore would only grant party and party costs. 

15.  I have looked at the costs statement.  The item for revising and calculating the statement of costs is not recoverable as a matter of principle.  Therefore, overall, I will only allow $10,000 in respect of that summons.