CHENG HUNG KIT AND OTHERS v. TASTY CATERING GROUP LTD AND OTHERS

HCA 1137/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1137 OF 2011

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D E C I S I O N

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1. There are two grounds for striking-out: (1) multiplicity of issues. But that was not brought about by the Chengs as the two actions were issued on the same day by the opposite sides; (2) warehousing. There is however no dispute that neither side has done anything since November 2011. Tasty and Federal have let the sleeping dog lie. This ground also fails.

2. It is a case of the parties being in pari delicto, the ultimate costs order should be no order.  That would have disposed of the costs on the Chengs’ application to put in the fifth and sixth affirmation of H K Cheng. 

3. In case it does not, I would also deal with the Chengs’ summons to put in these two affirmations.  The Chengs are very late in trying to put in the affirmations.  Lack of funds is a ground but that ground is not acceptable unless the depletion of funding is caused by the opponent. Furthermore, these affirmations are not needed for dismissing the striking-out summons. If these affirmations are to be put in, they will cause an adjournment as Federal and Tasty should be given a chance to respond.  If that should happen, I would not allow these affirmations to come in, but I would still dismiss the striking-out summons on the grounds that I have mentioned.  I therefore would not have acceded to the Chengs’ summons to put in the fifth and sixth affirmations of H K Cheng.

4. On the question of costs of this summons, I do not think Tasty and Federal should do anything about these two affirmations before getting the waiver of privilege from the Chengs.  I would not order the Chengs to give them such costs. 

5. In fact, looking at the matter from some distance, the key to unlocking the impasse and let the matter move ahead is consolidation.  It has been mentioned repeatedly but no application was made. Now that the matters are indeed consolidated and hopefully can steer a clear way forward, it is consolidation, which is not part of anyone’s application, that turned out to be the key to resolving the impasse.  I would therefore make no order as to costs on all matters dealt with today save already ordered in the amended draft order.  This applies to the Chengs’ summons to adduce the fifth and sixth affirmations of H K Cheng.