LAW SHIU KAI, ANDREW v. DYNASTY INTERNATIONAL HOTEL CORPORATION AND OTHERS

CACV 49/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 49 OF 2004

(ON APPEAL FROM HCA NO. 4 OF 2002)

____________________________

____________________________

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

D E C I S I O N

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

Introduction

1. This is an application by summons dated 12 January 2006 to this Court taken out by the plaintiff for orders that within 7 days from the date of the order to be made he will apply to restore the hearing of his application to vary the costs order nisi made by A Cheung J, and that the dates fixed for the hearing of the appeal herein, namely, 9 and 10 February 2006, be vacated.

Background facts & grounds of application

2. The plaintiff’s claim against the defendants was basically one for arrears of wages and benefits as an employee.  The action was tried before A Cheung J.  By his judgment handed down on 28 January 2004, the judge gave judgment in favour of the plaintiff against the 3^rd defendant but dismissed his claims against the 1^st, 2^nd and 4^th defendants (“the three defendants”).  He made an order nisi that the plaintiff was to have his costs against the 3^rd defendant but he had to bear the costs of the three defendants.

3. On 4 February 2004, the plaintiff applied (within time) to the judge to vary the costs order nisi, which application was fixed to be heard on 19 May 2004.

4. On 23 February 2004, the plaintiff filed his notice of appeal against the part of the judgment that was entered in favour of the three defendants.  He seeks on appeal to make the three defendants also liable to his claim.  One of his grounds of appeal challenges the costs order nisi.

5. On 8 May 2004, the plaintiff wrote to the court to ask for the vacation of the hearing on 19 May 2004 on the ground that he had applied for legal aid.  The judge refused the vacation and on 19 May 2004 made an order that the application to vary the costs order nisi be heard, if necessary, after the conclusion of the appeal.

6. Originally the appeal was fixed to be heard on 28 and 29 June 2005.  On 2 June 2005, the plaintiff asked the three defendants for their consent to vacate the appeal hearing because of his health problem.  The three defendants duly gave their consent and the appeal was rescheduled on 9 and 10 February 2006.

7. In two affirmations made by the plaintiff in support of his application before me, he sets out the grounds in support of his challenge of the costs order nisi.  If I may say so, these grounds are quite irrelevant to the application before me, which is basically for the vacation of the appeal hearing dates.

8. He also sets out his reasons for seeking the vacation of the appeal hearing dates, summarised as follows:

(a)   until recently he and his legal advisers had not noticed that the costs order was an order nisi and not an absolute one and it would be proper for the matter to go back before the judge for him to exercise his discretion prior to any appeal against costs being considered;

(b)   in view of the three defendants’ financial position, the appeal against them may be redundant since any judgment against them “is obviously empty judgment and nugatory” and thus costs would be the only issue for all practical purposes; and

(c)   counsel who has advised on this matter considers that he would take at least two hours to address the court on the costs order, but he would not be free to work on the matter until after the Chinese New Year holidays.

9. The three defendants’ position has been made known by correspondence.  They have no objection to have the hearing on the costs order nisi restored before the judge, if the restored hearing can take place before the appeal hearing, but if not, they will leave the matter to the Court of Appeal.

10. To complete the picture, it is also necessary to refer to the fact that the plaintiff’s solicitors wrote on 5 January 2006 to the court about the proposed restoration of the hearing of the application to vary the costs order nisi.  By a letter of 12 January 2006, the Registrar stated that the solicitors had been notified that morning that A Cheung J would be available to hear the restored application on 16 January 2006 at 3:30 pm.  The Registrar also made the point that in view of the supposed urgency of the matter, if that date should prove inconvenient to the parties, other dates would be available to hear the restored application.

11. Indeed, according to the affirmation filed on 17 January 2006 of Mr Ko Wah, a partner of the solicitors acting for the defendants, those solicitors had been told by A Cheung J’s clerk that a date for the restored hearing was available on 16 or 18 January 2006 but the plaintiff was not available on both dates and was not prepared to restore the hearing until after the Chinese New Year.

Decision

12. It is true that it would not be proper for a costs order nisi to be made a subject of appeal, because the judge’s view on the matter has not yet been finalised.  It is unlikely that the Court of Appeal will deal with such an order until it is made absolute.

13. Regarding the present application, I consider that the three defendants’ stance most reasonable.  They do not wish to waste the dates fixed for the hearing of the appeal and they are agreeable to have the application on the costs order nisi restored if the appeal hearing dates are not jeopardised.

14. On the other hand, the plaintiff’s attitude is unreasonable and has given rise to suspicion as to the true motive behind his application to vacate the appeal hearing dates.  Despite the offer by the judge to hear the restored application on 16 or 18 January 2006, prior to the dates fixed for the hearing of the appeal, such offer has not been taken up.  If the plaintiff is of view that the appeal, even if successful, would be quite nugatory because of the financial position of the three defendants and that for all practical purposes costs would be the only issue, it is up to him to consider how to deal with the appeal appropriately.  Simply seeking to vacate the hearing dates of the appeal, which has already been adjourned once due to his illness, is merely for gaining more time, presumably for putting in more thoughts as to the course that should be taken regarding the appeal, which is said to be “obviously … nugatory”.  I do not consider it right to allow the plaintiff more time at the expense of wasting the two hearing dates already fixed.  Regardless, there is still some time before the fixed dates for his consideration. 

15. It is one thing that the judge is agreeable to have the application to vary the costs order nisi restored before him prior to the hearing of the appeal, but it is quite a different matter to ask this Court to act contrary to the judge’s order that the application be heard, if necessary, after the conclusion of the appeal, in the absence of an appeal against that order.  In any event, the judge’s offer to restore the hearing before him prior to the appeal being heard has not been accepted.

16. Counsel’s convenience is not normally a proper matter to be taken into consideration, especially when the hearing dates on 9 and 10 February 2006 had been fixed sometime ago.  If counsel needs two hours to address the judge on the costs order nisi before the appeal is heard on 9 February 2006, it seems to me that A Cheung J may still be able to accommodate.

Conclusion

17. In the result, the application is dismissed, and after hearing counsel, with costs.