WONG WAN CHUEN v. WONG HING YEE AND ANOTHER
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HCA 4324/2003
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 4324 OF 2003
| _________________________ |
BETWEEN
| WONG WAN CHUEN | Plaintiff | |
| And | ||
| WONG HING YEE | 1st Defendant | |
| LIOU JE IANG | 2nd Defendant | |
| _________________________ |
Coram : Before Master K. Lo in Court
Date of Hearing : 17 January 2012
Date of Decision : 17 January 2012
Date of Handing Down Decision : 24 April 2012
_______________________
REASONS FOR DECISION
______________________
Introduction
1. Plaintiff took out a summons on 26 August 2011 seeking inter alia, leave to file and serve the Amended Statement of Claim and the amended Reply and Defence to Counterclaim (“1st Summons”). The same was informed and was scheduled to be argued on 17 January 2012.
2. Shortly before the hearing, plaintiff took out 2 more summonses on 12 January 2012. They were both also returnable on 17 January 2012.
3. In one summons, plaintiff seeked for leave of this court to set aside or otherwise withdraw the Notice of Discontinuance filed by the plaintiff on 8 June 2009 (“2nd Summons”) and in the other one, plaintiff seeked leave to, inter alia, renew the writ of summons (“3rd Summons”).
4. Despite the short notice, defendants consented to have 3 summonses heard on the same day, i.e. 17 January 2012.
5. After the hearing, I dismissed the 3 summonses. I also ordered the costs of the summonses be to the defendant, the same to be taxed if not agreed, with certificate for counsel.
6. I also ordered that the registration of writ of summons of the present action against the property known as Flat A, 7/F, Lee Cheung Building, No. 220 Wan Chai Road, Hong Kong (“the Property”) in the Land Registry be vacated at the cost of the plaintiff within 7 days from the date of the order.
7. I said I will hand down reasons for the decision which I now do.
8. In order to understand the background to the application it is necessary to set out briefly the chronology of events.
Chronology of events
9. The plaintiff here used to be the registered owner of the Property. In 1989, he married a Madam Chan. The 1st defendant, being the natural daughter of Madam Chan from her previous marriage became his stepdaughter. The 1st defendant later married the 2nd defendant who became the son in law of the plaintiff.
10. In January 2001, plaintiff assigned the Property to 1st defendant and 2nd defendant at a stated consideration which, according to plaintiff, was never paid. The 1st and 2nd defendant said that that was paid by way of loans. Plaintiff on the other hand said that defendants merely held the Property for the plaintiff as a trustee. Plaintiff said he lent the Property, at request of 1st defendant, so that 2nd defendant could apply for residence in Hong Kong. The 1st and 2nd defendant said they were the legal and beneficial owners of the Property. Meanwhile, the defendants gave plaintiff and Madam Chan a power of attorney in respect of the Property.
11. On 24 November 2003, plaintiff commenced the present action. He did not serve the writ on the defendants, not even up to the date of hearing on 17 January 2012. However, he did register the same against the Property in the Land Registry without the knowledge of the defendants, until the same was discovered by the defendants in year 2006. The plaintiff however did not proceed in the present action.
12. In the present case, the plaintiff claims for, inter alia, declaration that the defendants hold the Property in trust for him.
13. In 2007, the plaintiff instituted another action in District Court, namely DCCJ 198/2007 (“the District Court Action”) on the same subject matter seeking the same relief. Plaintiff proceeded in the District Court Action, pleadings were closed and there was exchange of witness statements.
14. Later, defendants took out application to strike out the District Court Action on the ground that there was the present action in the High Court covering the same subject matter.
15. On 8 May 2009, Master ordered the stay of the District Court Action until the disposal of the present action in High Court or until further order. At the same time, Master refused defendants’ application to transfer the District Court Action to the High Court.
16. One month later, on 8 June 2009 plaintiff filed the Notice of Discontinuance in the present action. Though the plaintiff was then on record legally represented, he filed the notice of discontinuance himself and he only filed the Notice to Act in Person subsequently on 24 June 2009. Plaintiff also served the Notice of Discontinuance on the defendants who received the same on 9 June 2009.
17. On the same day that plaintiff filed the Notice of Discontinuance in the present action, he also took out an application in the District Court Action seeking to lift the stay by reason that the present action was discontinued.
18. On 19 June 2009, Master dismissed the application with costs.
19. On 10 June 2009, the defendants, then acting in person in the present action.
20. On 19 June 2009, plaintiff took out another application in the present action seeking to “end” the present action. During the hearing of the application, the plaintiff withdrew the application.
21. On 29 June 2009, plaintiff again made an application seeking to transfer the present action to the District Court to be dealt with together with the District Court Action. The application was refused on 3 July 2009. Plaintiff appealed and the appeal was dismissed on 30 July 2009.
22. Meanwhile, the defendants took out an Order 14 application seeking Judgment on their counterclaim in the present action in High Court on 18 June 2009. At the hearing on 20 August 2009, the Master hearing the case did ask the parties to adjourn the hearing in order to clarify the position concerning validity of the Notice of Discontinuance. The defendants objected and the Master proceeded on the presumption that the Notice of Discontinuance was defective and the plaintiff’s claim against the defendants was still ongoing. The Master dismissed the Order 14 application on 25 September 2009. He also granted, inter alia, unconditional leave for plaintiff to file and serve his Reply and Defence to Counterclaim which plaintiff did on 1 February 2010.
23. On 7 April 2010, the defendants took out an application to strike out the claim of the plaintiff in the District Court Action by reason that there was the existing high court action covering the same subject matter.
24. Plaintiff was absent at the hearing and the Master hearing the application granted the application and struck out the District Court claim.
25. Plaintiff appealed before a District Judge, the same was dismissed on 11 May 2010.
26. On 22 April 2011, the defendants entered into a provisional agreement selling the Property to 4 purchasers. Later, the parties entered into a formal sale and purchase agreement on 6 May 2011.
27. Shortly after that, on 23 May 2011, the plaintiff commenced another action in the High Court, i.e. HCA 861/2011, this time apart from the defendants here, the 4 purchasers were also joined as defendants. The plaintiff claimed his interests in the Property as ranking prior to the interests of the defendants here.
28. Again the plaintiff did not serve the writ of the fresh High Court Action on the defendants. Instead, he just informed solicitors for the purchasers of the issuance of the fresh High Court Action. He also registered the writ of HCA 861/2011 against the Property in the Land Registry.
29. After the 4 purchasers were made aware of the High Court Action, they commenced HCMP 1609/2011 on 23 August 2011 and refused to complete the purchase.
30. Following that, the plaintiff issued the present 3 summonses.
Plaintiff’s case
31. In opposing the 1st Summons, Mr David Tang for the defendant submitted that the present action had ended when plaintiff filed and served the Notice of Discontinuance and the defendants received the same on 9 June 2009.
32. It was the plaintiff’s case that in the striking out application taken out by the defendant in the District Court on 7 April 2010, the defendant had contended that there was an ongoing High Court Action on the same matter and so on this ground, the District Court Action was struck out.
33. Mr Herbert Leung for the plaintiff said previously when the High Court Judge dismissed the appeal from the decision of the court refusing the application to transfer the present action to the District Court, he had done so on the basis that the present action was still subsisting.
34. He said therefore that irrespective of the outcome of plaintiff’s summons dated 19 June 2009 to “end” the present action, the present action remained subsisting after disposal of the 19 June 2009 summons and that the court must have held that the Notice of Discontinuance on 8 June 2009 was either invalid or withdrawn by plaintiff.
35. Mr Leung submitted further that as the defendant contended that they had never been served with the writ in the present action (which was not contested), the present situation fell within “Discontinuance or withdrawal of writ before service”. He referred the court to the commentary on such situation at paragraph 6/7/5 of Hong Kong Civil Procedure 2012 Edition Vol 1, which reads: -
“The discontinuance of the action or the withdrawal of any claim made therein before service of the writ can only be made with the leave of the court under O.21, r.3, and the application for such leave may be made by an ex parte summons before the master. However, see Toto Toys Ltd & Another v. King Fung Vacuum Ltd & Others (unrep. DCCJ 3338/2004 …). It is submitted that leave should be sought to avoid any party abusing the system of issuing writs and discontinuing the same by serving a notice of discontinuance.”
36. Mr Leung disagreed with the stance taken by the learned master in the Toto Toys Ltd case where it was held that when the writ was not yet served, the plaintiff could file Notice of Discontinuance without leave of the court. Plaintiff agreed with the commentary on the subject.
37. He submitted further that in the case of W v Hong Kong Adverntist Hospital & Another [1999] 3 HKLRD 429, where the writ was not yet served, the plaintiff did apply to court to discontinue the action before a master, therefore the court must have recognized that leave to discontinue is required.
38. Mr Leung stated therefore that there was no uniform practice in discontinuing an action where writ of summons was not served.
39. He submitted that after implementation of CJR, the court should require leave before the plaintiff would be allowed to discontinue to prevent abuse of the judicial system in order to assume the role order 1A rule 4.
40. He further persuaded this court that plaintiff never intended to give up the case against the defendants in the High Court by reason of the following:
(a) that when plaintiff filed the Notice of Discontinuance, he was on record legally represented and he had not yet filed the Notice to Act in Person.
(b) that he did subsequently asked to transfer the High Court case to the District Court and that the same was refused on basis that the present action was subsisting,
(c) that summons for direction in the present case was heard on 9 October 2009, and
(d) that there was statutory stay when plaintiff applied legal aid.
41. In respect of the 3rd summons, Mr Leung also submitted that failure to serve the writ was an irregularity but not nullity.
42. He cited the case of Bank of China (Hong Kong) Ltd v Chen Jianren, where O.2 r.1 and O.3 r.5 were invoked in the situation where the writ of summons was not served within 12 months from the date of issuance and no application for extension was sought for another 12 months’ time under O.6 r.8(2). There, the plaintiff had encountered great difficulty in locating defendants for service of the writ of summons. Application for renewal of writ was allowed. Battersby v Anglo-American Oil Co Ltd [1945] 1 KB 23 at 32 and Howells v Jones (1975) 119 SJ 577 at 578.
43. It was said also that in this case no limitation defence was available to the defendants as plaintiff had lodged his claim based on trust.
44. He asked this court to exercise its discretion and renew the writ.
45. He said further that the defendants had already submitted to the jurisdiction of the High Court even though the writ was not served as
(a) defendants had applied the District Court action to be heard at same time as the present action;
(b) defendants had retained solicitors on their behalf in respect of the present action between 22 January 2007 and 8 May 2009;
(c) defendants filed notice of intention to proceed after a year’s delay on 8 May 2009;
(d) defendant filed their Defence and Counterclaim on 10 June 2009;
(e) defendants applied for summary judgment on their counterclaim on 18 June 2009;
(f) defendants took out a summons for direction on 25 September 2009;
(g) defendants applied for legal aid for the present action on 12 November 2009;
(h) at all material times, defendants took no issue of the non-service of the writ of summons at any High Court hearings.
46. Plaintiff further relied on the case of Lee Fai v Chan Kui [1997] HKLR 1154where the plaintiff there seeked to renew a writ of summons which was not served on the defendants within time, leave was so granted by the master. Defendant appealed against the master’s decision and was dismissed by a judge. Defendants further appealed to the Court of Appeal. Meanwhile the plaintiff obtained interlocutory judgment because the defendant did not file the acknowledgment of service. The defendant sought to set aside the regular judgment but failed. In the hearing of assessment of damages, the defendant attended the hearing under protest of the jurisdiction point.
47. The Court of Appeal held that the explanation given by the plaintiff to renew the writ of summons was not good enough. Nevertheless the Court of Appeal dismissed the defendant’s appeal after considering the defendant’s conduct. The Court of Appeal placed much weight on the defendant’s application to set aside default judgment and his appearance at the hearing of assessment of damages, matters which relate to merits of the case and not connected to the challenge to the jurisdiction.
48. Mr Leung said here, the defendants did not take the issue of non-service of the writ of summons, they had further invoked the jurisdiction of the Court to lodge their counterclaim with a view to their own advantage. Thus, he said, the defendants had submitted to the jurisdiction of this Honourable Court and should not be allowed to rely on the point of non-service of writ of summons to deny its jurisdiction.
49. Plaintiff urged this Honourable Court to adopt the spirit and approach in Lee Fai’s case to allow plaintiff’s application to renew the writ, even if the court finds that the reasons given by plaintiff in support of the application might not be enough.
50. He criticized defendants for applying to strike out the District Court action on 7 April 2010 on the ground that there was an ongoing and existing claim in the High Court of the same nature and now defendants resisted plaintiff’s application, citing the fact that plaintiff had already filed his notice of discontinuance.
51. Mr Leung submitted that by holding a belief that plaintiff was not really intending to discontinue the High Court action, defendants now resisted plaintiff’s application to amend by saying that plaintiff did mean to discontinue and he did so. It was said that defendants were not conducting the litigation in a fair manner as they took different stances in different cases at their pleasure in order to obtain maximum advantage.
52. It was argued that justice required leave to be granted to plaintiff to renew his writ of summons so that he could carry on his claim against defendants.
53. Plaintiff submitted the reason why he filed the Notice of Discontinuance was because he was wrongly informed by staff of the Resource Centre that in order for him to be able to proceed with the District Court action, he must discontinue the present action. He therefore filed the Notice of Discontinuance.
54. It was said that he filed the notice for the purpose of better case management and plaintiff had never intended to abandon his claim against the defendants.
55. Plaintiff urged this court to refer to the case of Yeung Tai Wai v KPMG Peat Marwick DCEC 507/1999 where District Court dealt with the application to set aside the Notice of Discontinuance filed by the applicant. The applicant there said he had intended to adjourn a court hearing sine die instead of discontinuing the case. He went to the court registry seeking advice on how he could adjourn the hearing. He was given an English letter to sign, which turned out to be a notice of discontinuance. Refusing to set aside the notice, HH Judge Carlson (as he then was) said at §12 of the judgment,
“It is the plain duty of the court to provide a litigant in person with proper assistance in his (or her) conduct of particular litigation that he is pursuing. It must be vigilant to ensure that he has not been misled into taking a course of claim that is to his prejudice and that he does not intend to take …”
Defendant’s case
56. Mr Tang for the defendant submitted that in this case plaintiff was trying to seek leave to file and serve amended pleadings of an action which no longer existed.
57. He said that when the Notice of Discontinuance dated 8 July 2009 was served on the defendants on 9 July 2009, the action was discontinued. He submitted therefore the application by the plaintiff to amend the pleadings was an abuse of process of the court.
58. Mr Tang went on and said the plaintiff here had issued the writ in the present action and without notice to the defendants registered the same against the Property and yet not served it on the defendants, even up till date of this hearing. Nothing was done by the plaintiff in the present action, instead the plaintiff issued a similar action in the District Court. Plaintiff never withdrew registration of the writ in the present case from Land Registry. Plaintiff at the same time also registered the writ in the District Court Action in the Land Registry.
59. Mr Tang said that for reasons unknown to them, the plaintiff preferred the matter to proceed in the District Court and so despite the order of the master of District Court on 8 July 2009 staying the District Court Action, clearly intending parties to resolve the difference in the High Court, the plaintiff on 8 July 2009 filed Notice of Discontinuance in the present action and served it on the defendants on 9 July 2009. Plaintiff also took out a summons on the same day i.e. 8 July 2009 in the District Court seeking to lift the stay of proceedings there.
Discussion
60. There was in my mind, no doubt that the plaintiff had intended to “end” the present action and to proceed with the District Court action when he filed the Notice of Discontinuance on 8 June 2009 and when he filed on the same day of the Notice of Discontinuance the summons in the District Court applying to lift the stay. In fact, in support of such application, he exhibited copy of the Notice of Discontinuance signed by him in Chinese.
61. Further when the Master refused the application to lift the stay in the District Court on 19 June 2009, on the same day, plaintiff also took out another summons in the High Court seeking to “end” the present action. The summons was heard and during the hearing, plaintiff withdrew the summons.
62. Although it was argued that at time of filing of the Notice of Discontinuance, the plaintiff was on record legally represented and when he filed the Notice of Discontinuance, he had not yet filed Notice to act in person and therefore the Notice of Discontinuance would be invalid.
63. I do not accept this contention.
64. Although the plaintiff failed to follow the prevailing accepted practice, that would at most just be an irregularity. Surely, the plaintiff’s solicitors were merely agent of the plaintiff and I could not see the reason why the act of the principal could not bind himself and yet the agent could.
65. Further, after the implementation of Civil Justice Reform, one should further the underlying objectives under RHC Order 1A rule 1 by looking to “substance” and not “form” when appropriate.
66. Although in support of the 3 summonses taken out by the plaintiff now before this court, the plaintiff now said that he had never really intended to end the present action. In my view, that was merely a change of mind on his part. It contradicted his previous conduct. I do not accept this contention.
67. Coming to the validity of the Notice of Discontinuance, Order 21 rule 2(1) RHC reads: -
“Subject to paragraph (2A) the plaintiff in action begun by writ may, without the leave of the Court, discontinue the action, or withdraw any particular claim made by him therein, as against any or all the defendants at any time not later than 14 days after service of the defence on him […]”
68. It was submitted by the defendants that paragraph 2A would operate when the plaintiff has obtained an interim payment before the discontinuance. It therefore did not apply in the present case.
69. Here, defendants purportedly served their Defence on 10 June 2009, plaintiff could therefore discontinue anytime without leave on or before 24 June 2009.
70. If however the Defence was considered not a valid document, then obviously the Notice of Discontinuance could still be filed without leave.
71. It would not accord with common sense if one could discontinue without leave after one was served with the writ and the Statement of Claim and the defendants had filed their defence but not when the writ was not yet served.
72. It was said that if the action could be withdrawn in such cases without leave, then plaintiff could abuse the system. I could not see the logic in this argument. The defendant could at anytime, pursuant to RHC Order 12 rule 8A, demanded the plaintiff either to serve the writ or to discontinue the action.
73. Further, if leave was indeed required even though the writ was not served, the plaintiff could serve the writ and immediately thereafter file and serve the Notice of Discontinuance. No leave would be required.
74. Defendants’ position on costs could be protected by Order 62 rule 10(1). The same reads: -
“(1) Where a plaintiff by notice in writing and without leave either wholly discontinues his action against any defendant or withdraws any particular claim made or question raised by him therein as against any defendant, the defendant may tax his costs of the action or his costs occasioned by the matter withdrawn, as the case may be, and, if the taxed costs are not paid within 4 days after taxation, may sign judgment for them.”
75. Order 21 rule 2(1) clearly did not intend service of the defence to be a condition precedent to its application.
76. In the case of Toto Toys Ltd v King Fung Vacuum Ltd DCCJ 3338/2004, 10 August 2005, the learned master considered leave was not required for discontinuing an action the writ of which was not served.
77. Defendants disagreed to the stance taken by the commentary in Hong Kong Civil Procedure 2012 Edition paragraph 6/7/5 where it read: -
“… the plaintiff cannot unilaterally and without the leave of the court … amend the writ or withdrew any claims [therein]”
78. In face of the clear wordings of Order 21 rule 2(1), one could not see how the rule could be interpreted to exclude any time before service of the writ.
79. In this case, the plaintiff had tried various means to “end” the present action. He was forum shopping, and had wished the matter to be dealt with in the District Court, despite the order for stay in the District Court. His plan failed. The present case was never proceeded with. Plaintiff only seeked to proceed in the present action when defendants sold the Property.
80. It was said by the defendants that during the Order 14 hearing on 20 August 2009, and again in the judgment, plaintiff was reminded by the Master that he had to look into the validity or otherwise of the Notice of Discontinuance but plaintiff simply ignored. The plaintiff was legally represented then.
81. This court takes the view that the Notice of Discontinuance once served on the defendants brought an end to the present action which ceased to exist.
82. The writ in the present action was issued on 24 November 2003 i.e. over 8 years before the issue of the 3rd summons seeking to extend the writ for over 7 years after the writ expired. No explanation whatsoever was advanced by the plaintiff as to why he did not apply to renew or serve the write before. He did serve the writ in the District Court Action though.
83. Unlike the Bank of China cases cited above, I do not see difficulty of the plaintiff serving the writ in the present action on the defendants. In fact, he did serve them the writ in the District Court Action.
84. At one time, the plaintiff seemed to be suggesting that for the period immediately after the issue of writ in the present action, the defendants were in the States and they had difficulty in serving the writ.
85. This court noted also that there was no application for issue of a concurrent writ for service out of jurisdiction.
86. It is a fact also that the plaintiff here had now started yet another fresh High Court Action on the same subject matter, the writ of which was again not served but was registered in the Land Registry against the Property.
87. There is no issue of limitation in our present case and I could not see prejudice to the plaintiff if the writ was not renewed.
88. In fact, if the present action were alive, there would be two actions in the High Court covering the same subject matter.
89. The writ in this case was not served nearly 8 years after its issue. There was, prior to the 3rd summons here, never been any attempt by the plaintiff to extend the writ. As said by the defendants, the plaintiff did not proceed in the present action since May 2010 until August 2011 when he issued the summons.
90. In my view, on receipt of the Notice of Discontinuance, the defendants then acting in person, clearly were not aware of the legal consequence of the notice. They filed the Defence and Counterclaim on 10 June 2009. There was therefore actually no valid counterclaim possible as the claim had ended.
91. Here, defendants, then acting in person, did take out application for summary judgment against the plaintiff on their counterclaim in the present action. The same was dismissed on 25 September 2009.
92. In the meantime, the summons for directions taken out by 2nd defendant on 9 October 2009 was dismissed by the Master on 16 October 2009 as clearly the application was premature.
93. Defendants also applied for legal aid and the action was stayed.
94. The plaintiff, subsequently without seeking leave of the court filed his Reply and Defence to Counterclaim on 1 February 2010, i.e. 3.5 months later than the time limit allowed by the court.
95. On 9 February 2010, defendants were granted legal aid.
96. Defendants applied to strike out the District Court action on 7 April 2010 and the application was granted by the Master on 21 April 2010 when plaintiff failed to attend the hearing. Plaintiff later appealed and his appeal was dismissed on May 2010.
97. Nothing further was done by the plaintiff between May 2010 until 26 August 2011 when plaintiff started yet another High Court action on same subject matter this time to prevent the defendants from selling the Property, naming the defendants and the purchasers of the properties as defendants.
98. Though solicitors for the plaintiff brought the writ to the attention of the purchasers’ solicitors warning them not to proceed with the purchase, they did not serve the writ on anyone of the defendants up till the date of hearing. Again, the plaintiff registered writ of the new High Court Action against the Property at the Land Registry. There had not been any issue of the Statement of Claim in the new High Court Action but just an endorsement.
99. As a result of matters aforesaid, the purchasers issued the Vendor Purchaser Summons (“the VP summons”) i.e. HCMP 1609/2011 against the present defendants and they refused to complete the purchase of the Property.
100. Defendants criticized the plaintiff for sleeping on the present action for 15 months until 24 August 2011 when plaintiff threatened to take out summons seeking leave to amend the Statement of Claim and eventually plaintiff took out the 1st summons on 26 August 2011.
101. In relation to the 1st summons, I agree, as said by the defendants, that this is plaintiff’s application to file and serve the amended Statement of Claim and amended the Reply and Defence to Counterclaim when the present action no longer existed.
102. It was argued by the plaintiff that after 9 June 2009, defendants had filed pleadings, took out Order 14 application on the counterclaim, and had appeared before the court on few occasions.
103. Defence did say that the counterclaim of the defendants was an independent action and could proceed even if plaintiff’s claim was discontinued.
104. I have reservation on this submission as the counterclaim was filed only after the Notice of Discontinuance was served on the defendants, not before.
105. It was argued that the Deputy High Court Judge hearing the appeal from the master, never disputed that the present action was still subsisting when he refused the application by the plaintiff to transfer the present action to the District Court. On reading the judgment, it is noted that the existence of the Notice of Discontinuance was not mentioned. I suspect that the issue was not brought to the attention of Deputy High Court Judge at the time.
106. As for the Order 14 application before the master, he had considered the application expressly on the presumption that the present action still existed and the Notice of Discontinuance was defective. It appeared that court on various occasions were also not addressed or alerted as to the issue of validity of Notice of Discontinuance when they heard the case.
107. Indeed, the court on previous occasions would probably have refused to entertain defendants’ summonses on their counterclaim had they been made aware of plaintiff’s Notice of Discontinuance. This was the unfortunate result of the parties being unrepresented.
108. In the 2nd summons, plaintiff asked for leave that his Notice of Discontinuance, even if valid, be withdrawn or set aside.
109. It was submitted on behalf of the defendants that Rules of High Court (“RHC”) has provided no avenue for a plaintiff to withdraw a notice of discontinuance and that had the rules intended such withdrawal, it would have explicitly so provided as in the case of withdrawal of an acknowledgement of service (O21 r1), of an appeal, of an admission for money claims (O13A r2(3)), or of a sanctioned offer (O22 r7).
110. It was also argued by defendants that had RHC intended such withdrawal, then O21 r4 would not have explicitly said that, subject to any terms that the court may impose, a plaintiff who has discontinued his action may commence a fresh action on the same subject matter (subject, of course, also to the court’s inherent jurisdiction to strike out the new action on abuse of process etc).
111. However, whilst a plaintiff could not withdraw his notice of discontinuance, the court might set aside a plaintiff’s notice of discontinuance under its inherent jurisdiction to prevent the abuse of process by the plaintiff e.g. where a plaintiff purported to discontinue his action without leave soon after he obtained an interim payment against the defendant: Castanho v Brown’s Root (UK) Ltd and another AC [1980] 557 and Hong Kong Civil Procedure 2012 Edition paragraph 21/5/2. It was said however that the inherent jurisdiction was in place solely for the purpose of protecting the defendant, not the plaintiff.
112. I agree.
113. Mr Tang cited the case of Sayers v Smithkline Beecham [2007] EWHC 1335 (QB) paragraph 33, where Justice Keith in rejecting the plaintiff’s purported application to withdraw a notice of discontinuance, observed that it was “highly questionable” whether the court had the power to permit a plaintiff to so withdraw at all.
114. It is logical that it was not open to the plaintiff to withdraw the Notice of Discontinuance became otherwise, any action could possibly be revived and the defendants would never be certain if the action was over.
115. Defendants submitted further that the act of the plaintiff evincing his intent to discontinue the action was by itself an abuse of process: Supply Chain v Logistics Technology Ltd HCA 1939/2006, 23 November 2008.
116. The defendants said in view of the conduct of the plaintiff, he should not be allowed to revive the action even if this court did have jurisdiction.
117. Plaintiff was also criticized for acting in total disregard of the rules as he had not even cared to file Notice of Intention to Proceed when the present case was dormant for more than 1 year.
118. Further, it was said that the plaintiff did file the Reply and Defence to Counterclaim 3.5 months out of time without leave of court. There was therefore no valid pleadings for the proposed amendment. I agree.
119. It was submitted therefore that as the present action no longer existed, as said, there was no valid pleadings and the 1st summons should be dismissed.
120. In relation to the criticism raised against the defendants in representing at different times that the present action was subsisting and now said that the present action had ceased on 9 June 2009, the court whilst agreeing that the different stance taken by the defendants in relation to the existence of the present action was unfair to the plaintiff, on the other hand, noted the conduct of the plaintiff in instituting three similar actions, registering the writs of these actions in the Land Registry against the Property and not seriously proceeding in these actions, even not following the case management directions of master.
121. This court is unwilling and finds it inappropriate to exercise its discretion in favour of the plaintiff in the 3 summonses.
122. Even if the plaintiff could no longer revive the present action, there is still the fresh High Court Action on the same subject matter. No prejudice to the plaintiff will result.
123. I find that the Notice of Discontinuance was valid one and it had on 9 June 2009 effectively ended the present action, the subsequent pleadings could not be valid pleadings as the action was no longer in existence. Accordingly, the 1st summons would be dismissed.
124. As for the 2nd summons, I find the present action could not be revived as it was not open to plaintiff to withdraw a Notice of Discontinuance nor am I willing to exercise my discretion to have it set aside in circumstances of this case. The same is also dismissed.
125. Coming to the 3rd summons, by reason that the present action was no longer in existence, there could be no issue on writ validity, accordingly the same was also dismissed.
126. As a consequence, I also ordered vacating the registration of the writ in the present action against the Property in the Land Registry at the cost of the plaintiff within 7 days from date of my order on 17 January 2012.
Costs
127. As costs generally follow the event, this court ordered that the plaintiff shall pay the defendants costs of the three summonses, the same to be taxed if not agreed, with certificate for counsel.
| (K. Lo) Master of the High Court |
Mr Herbert Leung of Messrs Kelvin Cheung & Co for the plaintiff.
Mr David WK Tang of Messrs Lo & Lo for the defendants.