NEWOCEAN PETROLEUM CO LTD v. O. W. BUNKER CHINA LTD (in liquidation) AND OTHERS

HCA 384/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 384 of 2015

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D E C I S I O N

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Introduction

1. This was an application (“the consolidation application”) by the 2^nd and 3^rd defendants (“the RCL defendants”) for an order that the summons taken out by them on 3 November 2015 to set aside leave to serve the writ out of the jurisdiction in HCA 384 that had been granted by the Master to the plaintiff on 27 May 2015 be heard together with the summons taken out by Cosco Petroleum, the 2^nd defendant in HCA 381/2015 (“HCA 381”), returnable on 19 February 2016 (“the Cosco summons”).

2. On 22 January 2016 the plaintiff and the RCL defendants signed a consent summons in HCA 384, the present proceedings, for an order that:

(1)  the consolidation application be withdrawn;

(2)  the hearing of the consolidation application fixed for 1 February 2016 before this court be vacated; and

(3)  that costs be to the plaintiff forthwith, to be taxed if not agreed.

3. Although the consent summons reached the registry on 22 January, it did not reach the court until 24 January.  The RCL defendants’ solicitors were then advised that the court would only make an order in terms if the consent summons were to seek a dismissal rather than a withdrawal of the consolidation summons.

4. The RCL defendants’ solicitors replied by letter faxed to the court in the late afternoon of 25 January to the effect that they would not agree to the dismissal of the consolidation application.

5. Given the imminence of the hearing of the application in HCA 381, the court did not consider it either expedient or desirable to allow the withdrawal of an application which would have the effect of leaving it open for the applicants to have second thoughts and renew its consolidation application within the short window of time before 19 February 2016.  It would not have promoted the smooth functioning of the court’s business.

6. Accordingly, the parties were advised on 27 January of the court’s direction given on 26 January 2016 that it would not make the consent order and that the consolidation application would proceed as scheduled.

7. Not surprisingly, the plaintiff filed further affidavits for the hearing in opposition to the consolidation application.

8. In this regard, it is worth reiterating that where last‑minute court documents have to be filed, the judge’s clerk should be alerted and a copy faxed or hand‑delivered to him at the same time as the original documents are filed in court.  Parties as well as their legal representatives should understand and take note that documents delivered to the registry take time (sometimes several days) to reach the judge’s chambers.

9. In the event, the parties’ respective written submissions did not reach the court until less than 30 minutes before the hearing itself.  In those circumstances, the court had no opportunity to peruse the written skeletons at all prior to the hearing.  This resulted in the court having to reserve its decision at the conclusion of the hearing.

The consolidation application

10. Ms Chark who appeared for the RCL defendants based her application on there being common questions of law and fact as stated in §29 of her written submissions:

“29. The common questions of law and fact in the 2 actions are as follows:

(1) Did the Plaintiff consent to

(a) the consumption of the bunker by the end‑user (RCL‑TC);

(b) a sub‑sale of the bunker by a trader (Cosco Petroleum)?

(2) If the bunker was consumed or sub‑sold with the consent of the Plaintiff, could the Plaintiff maintain a cause of action in conversion?

(3) Could the Plaintiff by its standard terms retain its title to the bunker sold to RCLs and Cosco Petroleum pursuant to a contract with OW‑S or OW‑G subject to the standard terms of OWG?

(4)  Is the Plaintiff entitled to by‑pass the sub‑contractors to look to the an end-user (RCL‑TC) or a trader (Cosco Petroleum) for any sums due by the sub‑contractors?”

11. It is relevant to state that Cosco, the 2^nd defendant in HCA 381, who had been provided with the papers and evidence in HCA 384 by Brenda Chark & Co does not agree that the legal and factual issues involved in the two actions are the same and considers that allowing the RCL defendants to join in the 19 February hearing of the Cosco summons would lead to additional costs and a possible adjournment.  The plaintiff shares that view and, like Cosco, opposed the application.

12. It should be noted that in refusing the RCL defendants’ request made on 23 and 29 December 2015 for (1) contact details of the defendants’ solicitors in HCA 381 and HCA 446/2015 and (2) copies of summonses taken out by the defendants in those actions the Master considered that the RCL defendants had not satisfied the court that their case is related or similar to HCA 381 and HCA 446 and denied the request on 14 January 2016.

Merits

13. I have no doubt that the consolidation application has no merit.

14. The RCL defendants’ case is founded on a number of assumptions as to the factual and legal issues.  That is apparent from §§18, 20, 21, 25 and 26 of their written submissions and confirmed in §34 where it is stated that without the benefit of sighting the documents sought, “there is a risk that all the presumptions in respect of [HCA 381] could turn out to be wrong” (emphasis added).

15. For that reason alone the consolidation application falls to be dismissed.

16. I would add that, in my view, the consolidation application is but an ill‑conceived attempt to secure an earlier hearing date (ie 19 February 2016 rather than 8 June 2016) without regard to the prejudice that might be caused to the parties in HCA 381 by way of additional costs and/or a possible adjournment.  In any event, there is no reason, much less any good reason, why the parties to HCA 381 should be made to shorten their allotted hearing slot in order to accommodate the RCL defendants.

Conclusion

17. Accordingly, the consolidation application is dismissed.  There is to be an order nisi of costs in favour of the plaintiff.