NEW SPARKLE ROLL INTERNATIONAL GROUP LTD AND ANOTHER v. SZE CHING LAU AND ANOTHER

HCA 123/2024

[2024] HKCFI 689

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 123 OF 2024

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D E C I S I O N

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1.  This is the 1^st defendant’s application by summons dated 7 February 2024 (“D1 Summons”) for leave to appeal to the Court of Appeal against the decision I handed down on 6 February 2024 (“6.2.2024 Decision”) on the 4 grounds set out in the draft notice of appeal attached to the D1 Summons.

2.  With regards to grounds 2 to 4, I have already set out in detail in the 6.2.2024 Decision, the events leading to the plaintiffs’ summons dated 19 January 2024 (“Ps Summons”) and my reasoning relating to the usual 3-stage inquiry into merits, adequacy of damages and balance of convenience. It is unnecessary for me to repeat them here.

3.  The only new point is ground 1. The 1^st defendant failed to persuade the court to accept his submissions made without reference to evidence. He now suggests that the court owes him an opportunity to adduce evidence and then to re-argue the Ps Summons on the basis of his evidence. The 1^st defendant never proposed at or before the hearing on 26 January 2024 that the Ps summons should be dealt with in this truncated and cumbersome manner. Had he done so, he would have faced strenuous opposition from the plaintiffs and strong disapproval from the court.

4.  A party in the position of the 1^st defendant should have moved the court to adjourn the hearing of the Ps Summons and to give directions for the filing and service of affidavit evidence by the parties. This was not done. It is not the court’s duty to decide for a party whether or not a hearing should be proceeded with right away without evidence or that the hearing should be adjourned with an opportunity to all parties to adduce all relevant evidence.

5.  Leaving aside the Ladd v Marshall hurdle, granting a second bite of the cherry to the 1^st defendant would defeat the express underlying objectives of our civil procedures to promote proportionality and procedural economy, to save time and costs, and to fairly distribute the court’s resources.

6.  The D1 Summons is dismissed.

(Discussion re costs)

7.  On the question of costs, in order to save time and costs, I can indicate that it appears to me that a fair costs order would be for the 1^st defendant to pay the 1^st plaintiff’s costs on a party and party basis with certificate for two counsel.

8.  To enable this court to summarily assess the 1^st plaintiff’s costs on the basis that I have just indicated, the 1^st plaintiff shall have 7 days to file and serve its statement of costs relating to the D1 Summons. And the 1^st defendant shall have 7 days thereafter to file and serve his objections, if any. There shall be no further submissions on costs without leave of the court.