WITTNER'S AUSTRALIA PTY LTD AND ANOTHER v. KINGLAND CARGO (HK) CO., LTD

HCAJ 143/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO 143 OF 2012

--------------------------

---------------------

D E C I S I O N

---------------------

1.  This is the plaintiffs’ application for consolidation of two admiralty actions – HCAJ 143/12 (“1^st Action”) and HCAJ 151/12 (“2^nd Action”). This application is not resisted by the defendant in the 1^st Action but is opposed by the defendants in the 2^nd Action.

2.  The material facts can be briefly stated.  The 1^st plaintiff was the purchaser and owner of 52 cartons of finished leather (“Cargoes”).  The Cargoes were shipped from Hong Kong to Shantou in the Mainland under a Bill of Lading (“BL”) issued by the defendant in the 1^st Action (“Kingland”) on board the vessel MV Shun Yun (“Vessel”) which was owned by the defendants in the 2^nd Action (“Owners”).  The Vessel sunk en route from Hong Kong to Shantou resulting in the loss of the Cargoes.  The 2^nd plaintiff was the insurer of the Cargoes and has the subrogated right to sue for their loss. 

3.  In the 1^st Action, Kingland was originally sued on the BL. However, there is an interesting feature in this unfortunate incident in that the Owners have denied that the Cargoes were ever shipped on board the Vessel. Alarmed by the allegation, the plaintiffs duly amended their case in the 1^st Action to include that of misrepresentation.  In the 2^nd Action, the Owners are sued for the loss of the Cargoes. 

4.  The applicable principles for consolidation are trite.  I have been referred to O 4, r 9 as well as the unreported decision in Sincere View Intl Ltd v Kenco Investments Ltd & Ors, HCA 301/05 & HCA 569/05, 3 February 2006. 

5.  In my view, the merits of this application are abundantly clear given the fact that the two actions arose out of the same transaction.  It makes no sense to have the actions tried separately in terms of time and costs.

6.  The only ground upon which this application is resisted is that it is contended by the Owners that Kingland has, in the 1^st Action, admitted the loading of the Cargoes onto the Vessel.  Such contention is misconceived.  In Kingland’s Defence, the plaintiffs are put to proof in respect of the matter. 

7.  There is clearly a common question of fact in both actions – whether the Cargoes were shipped on board the Vessel.  It would be wrong to have the actions tried separately with the risk of inconsistent findings. 

8.  Accordingly, I make an order in terms of paras 1 and 2 and the Summons dated 8 May 2013.  The costs of this application be borne by the Owners in favour of the plaintiffs and Kingland to be taxed if not agreed.