WING HANG BANK LTD. v. CRYSTAL JET INTERNATIONAL LTD. AND OTHERS

CACV 140/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 140 OF 2000

(ON APPEAL FROM HCMP 5014/1999)

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J U D G M E N T

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Hon Rogers JA :

Introduction

1. This is an appeal from an order of Cheung J given on 15 April this year. It arises in an originating summons which was issued on 18 August of last year.

2. The originating summons simply specified the relief which was sought. The first relief which was sought was a claim by the plaintiff against the 1st defendant for possession of a property in Mount Kellett Road and payment of money due to the plaintiff under a legal charge dated 21 May 1997 made between the 1st defendant as the mortgagor, the 2nd defendant as the borrower and the plaintiff as the lender.

3. The second relief sought payment of all monies due to the plaintiff under the legal charge in respect of the property dated 21 May 1997 and made between the 1st defendant as the mortgagor and the 2nd defendant as the borrower of the second part and the plaintiff as the lender of the third part.

4. The third relief that was sought was payment of all monies due to the plaintiff under the guarantee dated 27 October 1995 and given by the 3rd defendant in favour of the plaintiff covering the unlimited liability of the 2nd defendant together with interest thereon.

5. The fourth relief which was sought was the payment of all monies due to the plaintiff under the guarantees dated the 27 October 1995 and 21 December 1998 and both given by the 4th defendant, who I would indicate is in fact three different people, in favour of the plaintiff covering the unlimited liability of the 2nd defendant together with interest thereon.

6. The claims arise under a legal charge and guarantees.

7. There was an acknowledgement of service of that summons on 3 September and the founding affidavit on behalf of the plaintiff was filed on 17 September.

8. The matter then proceeded. On 21 October there was a notice of appointment to hear the originating summons fixed for 9 December. Eight days before that, on 1 December, the plaintiff filed a supplemental affirmation, this time of Mr Tiu Wai Man. On 8 December, three affirmations were filed by the defendants and the originating summons was then adjourned on the following day to 6 January.

9. On 29 December, however, Mr Tin Chee Cheung filed a supplemental affirmation which was, I might say, of a massive size, on behalf of the plaintiff and there was also another affirmation, this time by Mr Fok.

10. On 6 January, the matter came before Master Cannon. An application was made on behalf of the defendants, who were then represented, to strike out the originating summons on the grounds that it did not fall within Order 88. That application was refused. A notice of appeal was filed within time.

11. Thereafter, on 21 January, a notice of hearing of the originating summons before Cheung J on 6 April was served. There was consent to further evidence being filed out of time. The appeal from Master Cannon's order was heard on 15 March and it was dismissed by Madam Justice Yuen. After she dismissed the appeal against Master Cannon's refusal to strike out the originating summons, Madam Justice Yuen granted an injunction effectively to prevent the 1st defendant entering the house which was the subject to the proceedings.

12. On 1 April, the plaintiff took out another summons, this time for leave to rely on yet further affirmations.

13. When the matter came before Cheung J on 6 April, he said :-

"The parties in this case have filed a total of 19 affidavits and the documents prepared for the hearing consist of two large volumes with a total of 652 pages. In my view, it tantamounts to an abuse of process to require a judge in an originating summons proceeding to plough through 19 affidavits and voluminous exhibits in order to determine whether any triable issue exists between the parties. The absurdity of the situation is self apparent. The matter should never have been dealt with in this manner. This is particularly unacceptable when the Rules actually provide for directions and how they should be given for the future conduct of the case. Any attempt to persuade a judge to undertake the course suggested by the plaintiff should be strenuously resisted."

14. Pausing there, it is quite clear in my view that Cheung J did not decide whether there were indeed any triable issues raised by the defendant. He was faced with massive evidence and he considered that faced with that, he could not decide the matter in the manner envisaged by the originating summons process. Having considered the affidavits before this hearing myself for some considerable time, I can only say that I agree with him. I think that his approach to the matter was correct. In fact, what Cheung J did was to order that the originating summons should be treated as if it were commenced by writ and he made the following directions :-

"(1) The plaintiff is to file the Statement of Claim within 10 days.

(2) The defendants are to file the Defence within 10 days.

(3) The plaintiff is to file the Reply within 10 days thereafter.

(4) Discovery within 10 days of close of pleadings and inspection within 10 days thereafter.

(5) The affidavits filed by the parties are to stand as witness statements.

(6) The parties are entitled to file one further witness statement within 10 days after inspection of the documents."

15. Mr Yuen, for the plaintiff, has manfully dealt with the objections of the court in respect of his case. He admitted at the outset that if the judge's directions had been complied with, they would have been completed by the time this appeal came to be heard and the matter would now be ready to be heard before the judge at first instance.

16. In my view, this appeal should never have been brought. The judge gave very sensible case management directions. There is no question of any injustice to any of the parties. What the judge did was to seek assistance of the parties so that it could be determined whether and if so, what triable issues there were. He did so in the conventional way by ordering pleadings. In effect, he shortened the time for the pleadings, appreciating that they could be done quickly. There is no reason why, if the plaintiff so wished, it could not have done its part of the pleadings speedily and contracted the time by about 20 days.

17. Nevertheless, this appeal has been brought. In the circumstances of this case, even if the appeal were successful, the only effect could be, in my view, that this court would have to remit the case to the judge below with a direction not to have the matter heard with pleadings but to have it heard it as an originating summons.

18. Mr Yuen has invited this court to go through the evidence filed by the parties in order to determine that there are no triable issues. In my view, that course would be quite wrong for this court to take because that would be doing what the judge at first instance has to do, namely to decide the case at first instance. All this court should do in the circumstances of this case is to consider whether the directions given by the judge were appropriate directions and whether they are directions which this court could interfere with. Not only do I consider that no ground has been made out for interfering with these directions but these are eminently sensible directions given by the judge below and I would not contemplate, for one moment, disturbing them.

Hon Mayo VP :

19. I agree entirely and there is nothing that I could usefully add.