THEONE CREDIT LTD (formerly known as THE ONE PROPERTY CREDIT EXPRESS LTD) v. LEUNG CHI WING

DCMP 1422 /2017

[2018] HKDC 552

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1422 OF 2017

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REASONS FOR DECISION

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Introduction

1.  At the hearing before me on 16May 2018 (“the Hearing”), I dealt with 3 applications, all made by the Defendant, as follows: -

(1)  An application, made by a summons filed on 4April 2018 (“the Stay Application”), to stay the execution of the order for sale made by me on 9March 2018 (“the Order for Sale”);

(2)  An application, made by a summons filed on 7 May 2018 (“the Leave Application”), for leave to appeal against the Order for Sale; and

(3)  An application, made via Mr Dan Leung, Counsel for the Defendant, orally at the Hearing, for retrospective time extension vis-à-vis the Leave Application (“the Time Extension Application”), as the Leave Application was obviously out-of-time.

2.  At the end of the Hearing, I dismissed all 3 applications, ordered the Defendant to pay the costs of all 3 applications to the Plaintiff immediately, summarily assessed those costs at HKD 18,215 (“the Decision”), and indicated I would be handing down my full reasons in writing, which I hereby do.

3.  These Reasons for Decision must be read in conjunction with my Reasons for Judgment dated 9 April 2018 (i.e. [2018] HKDC 368), in which I explained why I made the Order for Sale in the first place.  For consistency, I shall continue to use the same abbreviations.

The Time Extension Application

4.  Under Order 58 rule 2(4)(b) of the Rules of the District Court (Cap 336H), the Leave Application should have been made within 28 days from 9March 2018 (the date of the Order for Sale), i.e. before 6 April 2018.

5.  However, the Defendant did not make the Leave Application until 7 May 2018.  The Leave Application was thus 31 days late.

6.  The first hurdle faced by the Defendant was therefore the Time Extension Application.

7.  The relevant legal principles had been accurately summarized in Hong Kong Civil Procedure 2018 at Volume 2, page 1136, paragraph P3/58/31, as follows: -

“When the Court decides whether to exercise its discretion to grant an application for leave to appeal out of time, relevant factors include: (1) whether there are adequate reasons supporting the delay; (2) the length of the delay; (3) the possible prejudice caused to the other side; and (4) the prospect of success of the appeal…”

8.  For factor (1) above, Mr Dan Leung, Counsel for the Defendant, submitted the delay was caused by the “inadvertence” of the solicitors for the Defendant, as opposed to any fault on the part of the Defendant personally.  He further said those instructing him accepted full responsibility for the delay, and that the delay was the result of a “genuine and honest” but obviously wholly mistaken belief that the Defendant must wait for my Reasons for Judgment (i.e. [2018] HKDC 368) before he could take out the Leave Application.

9.  I accepted that submission as true.  The false advice given by those instructing Mr Leung made its way into paragraphs 7 to 9 of the 2^nd Affirmation of the Defendant dated 3April 2018 (“D’s 2^nd Affirmation”), where he falsely deposed that he was “unable to” take out the Leave Application as my Reasons for Judgment (i.e. [2018] HKDC 368) had not been handed down yet, when the true position, as now accepted by Mr Leung and those instructing him as correct, was that time started to run on 9 March 2018, when I made the Order for Sale orally in Open Court.  It was irrelevant that the full reasons were not available. If the Defendant was minded to seek leave to appeal, he could simply take out a protective summons first, and then supply his amended proposed grounds of appeal after the full reasons were made available.  It was completely false that he was “unable to” do so.  Given that D’s 2^nd Affirmation was drafted and filed by the Defendant’s solicitors, I accepted as true that the aforesaid false assertion was a result of false advice given to the Defendant by the Defendant’s solicitors.  But for my consideration under factor (4), which I will elaborate below, I would have acceded to the Time Extension Application, as in my view the Defendant should not be “penalized” by the fault of his solicitors.

10.  For factors (2) & (3) above, the length of the delay was about 31 days and Mr Dan Leung, Counsel for the Defendant, submitted the delay caused no prejudice to the Plaintiff because even if the Defendant took out the Leave Application within time, it would still have been heard on 16May 2018, as that date had already been marked for the Stay Application, and one would expect the Leave Application and the Stay Application to be heard together.  In that sense, the 31 days delay made no practical difference whatsoever.

11.  I also accepted that submission as true.  But for my consideration under factor (4), which I will deal with hereinbelow, I would have acceded to the Time Extension Application, as in my judgment it was true the delay made no practical difference whatsoever.

12.  In relation to factor (4) above, as had been sensibly acknowledged by Counsel for the Defendant, the Defendant was attempting to appeal against the exercise of a discretion.  Unless it would be reasonably arguable that I had taken irrelevant matters into account, or had failed to take relevant matters into account, or had plainly exceeded “the generous ambit within which reasonable disagreement is possible”, it would appear the intended appeal would have no prospect of success.  See: Tsang Loi Fat v Sun Fook Kong [2011] 4 HKLRD 344 at 348(paragraph 9, per Cheung JA) and RK v YS (HCMP 1969/2012, 1 November 2012, paragraphs 5 & 6, per Kwan JA).

13.  Counsel for the Defendant alleged I erred in saying the Defendant created his own predicament as I supposedly failed to appreciate the reality that a litigant in person (as was the Defendant before he was referred to his current solicitors) may not appreciate the importance of protecting his interests. With respect, that argument was wholly unmeritorious.

14.  The points made in paragraphs 21 to 26 of [2018] HKDC 368 were to the effect that the Defendant was under a legal obligation to pay the Plaintiff in full and plainly could have done so.  That was unchallenged and obviously true.  One does not have to be a lawyer to understand a debt is a debt, and that when a court of law orders a person to pay up [B/94], that person should comply with that court order and pay up.  The Defendant did not comply with that court order [B/94]. D’s Affirmation [A/49], dated 10 October 2017, was drafted and filed by solicitors, so the Defendant must have consulted lawyers on or before that date.  However, even as of the date of the Hearing (i.e. 16 May 2018), long after the Defendant consulted lawyers, the Defendant was still refusing to pay the Plaintiff in full despite the court order [B/94].  The Defendant’s refusal to pay was therefore a choice he made, as opposed to a truly involuntary event (as would be the case if he was, for example, left stranded in a third world country by accident, or in a coma because of a medical condition, so that operating his HSBC bank accounts or dealing with his bankers was literally impossible).  As the Defendant was plainly in the position he found himself by reason of a choice he made, he plainly created his own predicament.  There was no error.

15.  Counsel for the Defendant then further alleged the unwillingness to settle for less (on the part of the Plaintiff) was not conducive to the resolution of this case. With respect, that argument was wholly unmeritorious.  Our laws do not force judgment creditors to accept less than they deserve.

16.  Finally, Counsel for the Defendant alleged I had failed to take into account the fact that D’s Flat was a Home Ownership Scheme flat.  Again, that argument was wholly unmeritorious.

17.  As I had mentioned in paragraphs 32 to 34 of [2018] HKDC 368, it was the Defendant who suggested to me that he had received HKD 340,000 by way of settlement sums from DCEC 2623 / 2016, and that he had a claim to HKD 999,465 in common law damages, and that those sums would be over and above the HKD 500,000 net proceeds of sale the Defendant would be receiving from the sale of D’s Flat.  I was aware that even with HKD 1,839,465 in cash, the Defendant may still have to live in rented units, but in my judgment, having to rent instead of buy was a common and normal phenomenon in Hong Kong and should not be regarded as “hardship”.

18.  The fact that D’s Flat was a Home Ownership Scheme flat did not make paragraphs 32 to 34 of [2018] HKDC 368 false.  The laws of Hong Kong did not in any way guarantee that once a person had bought a Home Ownership Scheme flat, his living quality or living standard would never drop.  Our laws did not in any way guarantee that every living person must be given a perfectly comfortable, perfectly spacious and self-owned property.  In any case, the mere fact that a person’s living quality or living standard may drop did not and would not without more amount to a “good reason” not to make the Order for Sale.

19.  All things considered, I could see no prospect of the Defendant’s intended appeal succeeding at all.

20.  It was for all of the above reasons that I had, after due and careful consideration, dismissed the Time Extension Application.

The Leave Application

21.  Having dismissed the Time Extension Application, I should also dismiss the Leave Application itself, which I did.

22.  Even if I were to grant the Defendant an extension of time, I would still have dismissed the Leave Application, as the intended appeal would have no prospect of success, for the reasons set out hereinabove.

The Stay Application

23.  I could see no reason why there should be a stay.  The Defendant’s intended appeal had no prospect of success.  There was simply no reason why the Plaintiff should be deprived, permanently or temporarily, of the full benefits of the existing court orders.  By the terms of the Order for Sale, the Defendant had been given 28 days to redeem D’s Flat by full payment.  He chose not to redeem D’s Flat by full payment.  The Defendant must accept the consequence of the choice he made.

Costs

24.  The Plaintiff was clearly the overall winner.  Costs should follow the event.  I ordered the Defendant to pay costs to the Plaintiff accordingly.

25.  I read the Statement of Costs lodged by the Plaintiff.  I heard full oral submissions by both parties on each item.  The parties were in agreement that by reason of what was said in Law Society Circular 17-1017(PA) dated 11 December 2017, which took effect from 1 January 2018, Ms Sonam Ho of the Plaintiff’s solicitors, being newly admitted, should generally be allowed HKD 1,730 per hour only in District Court inter-partes taxation or assessment, though the guidance was never binding on me and was for my reference only.  I adopted that rate as the starting point.  I further agreed with Counsel for the Defendant that only the costs of one junior solicitor should be allowed, as the applications made by the Defendant were not so complicated as to reasonably require work to be done by two solicitors, or by a solicitor admitted in 2005.

26.  For “Conference with Client”, I agreed the Plaintiff was entitled to receive advice from its solicitors on the applications made by the Defendant, and the Plaintiff’s solicitors must of course take instructions from the Plaintiff.  A Conference lasting 1.5 hours (or multiple Conferences adding up to 1.5 hours) attended by a junior solicitor was reasonable.

27.  As to other preparation work for the Hearing, the Plaintiff claimed 8 hours of preparation work by Ms Ho and Counsel for the Defendant suggested that that was wholly excessive. In my judgment, that was slightly excessive.  I considered 7 hours of preparation work by Ms Ho to be reasonable and proper.

28.  Counsel for the Defendant observed Ms Ho lodged and served her skeleton submissions late. That observation was correct, but I did not consider the delay to be so bad as to justify depriving the Plaintiff of the drafting costs.

29.  Solely for the purposes of assessing inter-partes costs, and without disrespect, I disallowed the time spent by Mr Alexander Leung, for the reasons set out in paragraph 25 hereinabove.  The applications made by the Defendant were not so complex as to reasonably require work to be done by two solicitors, or by a solicitor admitted in 2005.

30.  The Hearing itself lasted 2 hours and it was obviously reasonable for Ms Ho to be in attendance throughout the Hearing itself.

31.  Having considered the above and having done the calculations, in my judgment it was reasonable and proper to allow a total sum of HKD 18,215 as the Plaintiff’s inter-partes costs for the 3 applications made by the Defendant, inclusive of the costs of the Hearing itself, and I ordered accordingly.

Final Remark

32.  I thank both advocates for their able assistance.

DCMP 1422 /2017

[2018] HKDC 368

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1422 OF 2017

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REASONS FOR JUDGMENT

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Introduction

1.  By an Originating Summons dated 18 May 2017 (“the OS”), the Plaintiff sought to enforce, by an order for sale, the Charging Order Absolute registered against a flat in Glorious Garden (富健花園) (“D’s Flat”) co-owned by the Defendant and one Madam Leung.

2.  Madam Leung had been adjudged bankrupt and her interest in D’s Flat had been severed and vested in her trustees in bankruptcy (“the Trustees”): see Re Leung Pui Pui Maggie (a bankrupt) [2017] 1 HKLRD 83 at 88 para 19 & 20 per Peter Ng J.

3.  The Trustees had been made aware of [B/122] the OS and did not oppose it [B/123].

4.  The Defendant, however, opposed the OS and filed an affirmation dated 10 October 2017 (“D’s Affirmation”) [A/49] for that purpose.  The main ground of opposition in D’s Affirmation could be described as a “humanitarian” consideration.

5.  On 9 March 2018, at the substantive hearing of the OS, I made an order in terms of the draft order submitted by Mr Clement Au, Counsel for the Plaintiff, as amended by me, ordering the sale of D’s Flat with costs to be paid by the Defendant to the Plaintiff, to be taxed if not agreed, with Certificate for Counsel (“the Judgment”) and indicated I would be handing down my reasons for the Judgment in writing, which I hereby do.

Background Facts

6.  The Defendant acted as a guarantor for his son, as a result of which he became indebted to the Plaintiff [A/50].  Final judgment was entered against the Defendant on 16 April 2015, and the judgment sum was HKD 315,545.21 plus interests “at the rate of 36% per annum from 28 February 2015 to the date of full payment” plus costs assessed at HKD 9,200.00 [B/94 & 95].

7.  A Charging Order Absolute was granted by this Court on 24July 2015 [B/102] and duly registered against D’s Flat [B/73].  The Defendant failed to pay the Plaintiff.

8.  The Defendant alleged that subsequent to the date of the Charging Order Absolute, he had an accident on 30 October 2015 and that had been made the subject of a claim (DCEC 2623 / 2016) [B/147].

9.  The Defendant further said he had retained lawyers for an intended common law claim for the same accident (“the Intended Claim”) [A/52].  D’s Affirmation did not provide further details on the Intended Claim and no legal document in relation to the Intended Claim had been exhibited.

10.  The Defendant considered his financial hardship to be “temporary”[A/53] and asked that the OS be dismissed [A/54].  He alleged selling D’s Flat would render him “homeless”[A/53].

Submissions of the Plaintiff

11.  Mr Clement Au, Counsel for the Plaintiff, submitted that an order for sale should be made in respect of D’s Flat.

12.  Mr Au submitted my starting point should be Union Finance Ltd v Leung Wai Ling [2000] 2 HKC 821 at 823-G, where Chung J said: -

“There is no doubt that the court has a discretion over whether to… enforce a charging order by sale. However, this discretion must be exercised judicially. It has been said in a number of cases that a judgment creditor is prima facie entitled to enforce his judgment by a charging order unless the debtor establishes some good reason to the contrary...”

13.  Following from that, Mr Au said none of the matters raised in D’s Affirmation qualified as “good reason to the contrary” for this purpose – so I should grant an order for sale in the normal manner.

14.  Mr Au elaborated on the above as follows: -

(1) Final judgment was entered against the Defendant as early as on 16 April 2015 – the Defendant had been evading his responsibilities by delaying tactics;

(2) The “settlement offer” made by the Defendant was wholly unacceptable to the Plaintiff and rightly so – a periodic repayment of HKD 4,000 per month (as offered by the Defendant) would not even cover the monthly interests of HKD 9,122.62 per month;

(3) The Defendant’s indebtedness as of 9 March 2018 was in the sum of HKD 675,265.67 whereas D’s Flat was not worth much so there was no “over-security” issue in our present case at all; and

(4) It was the Defendant’s own sworn evidence that his financial hardship was “only temporary”[A/53] and that temporary financial hardship (even if true) would be relieved by the proceeds of sale – on the Plaintiff’s calculation the Defendant should be able to pocket a net sum of at least HKD 500,000 from the sale.

Submissions of the Defendant

15.  Mr Kenneth Lam, Solicitor for the Defendant, submitted that the OS should be dismissed.

16.  Mr Lam accepted the law to be as set out in Union Finance (above), but also drew my attention to (1)So Yuk Ping v Tam Sum Shing (DCMP 2760 / 2013, DDJ Winnie Tsui, 12November 2014); (2)Chan Miu Cheung v Prague Enterprises Ltd [2012] 3 HKLRD 414 at 421 para 39 per Yuen J; (3)Robinson v Bailey [1942] Ch 268 at 271 per GavinSimonds J; and (4)Oldham, Li & Nie, Solicitors v Wong Lin Chooi (DCCJ 5076 / 2004, DDJ K Lo, 13February 2006) and submitted there was “over-security” in our case, and that that would make it wrong for me to exercise my discretion in favour of sale.

17.  Mr Lam referred me to D’s Affirmation [A/53]and said an order for sale would render the Defendant and his 10-year old son “homeless”.

18.  Mr Lam further referred to the fact that the Defendant’s settlement offer had been rejected and submitted that the Plaintiff’s conduct was “totally unreasonable”.  Mr Lam suggested the Defendant was “sincere” in attempting to repay his debt and that as such, the Plaintiff’s conduct in prosecuting the OS was “unjust and unfair”.

19.  Lastly, Mr Lam suggested that the Plaintiff had a share capital of HKD 1,000,000 and there would thus be no injustice or unfairness in allowing the Defendant to repay his debt by installments.

My View

20.  On the issue as to whether I should grant an order for sale, I agreed with the submissions of Mr Clement Au, Counsel for the Plaintiff and disagreed with the submissions of Mr Kenneth Lam, Solicitor for the Defendant.

21.  Firstly, I agreed the Defendant had, for whatever reason of his own, been evading his responsibilities to pay the Plaintiff by delaying tactics.  Had the Defendant paid his debt in time, there would be no court judgment against him and the sum he had to pay would be smaller.  It was because he had been evading his duties to pay since early 2015 that interests continued to accrue, to his own disadvantage.

22.  I considered paragraphs 5 to 10 of D’s Affirmation [A/50 & 51].  In my judgment, none of the matters deposed to could credibly explain why the Defendant did not pay the Plaintiff in full in 2015, or indeed at any time.

23.  In fact, the letter reproduced by the Plaintiff at [B/128] suggested that as of June 2017, the Defendant still had a banking relationship with HSBC.

One can also see from the land search records [B/71] that as of May 2017, D’s Flat was still charged to HSBC and HSBC had priority over the Plaintiff.  One can assume, in the absence of affidavit evidence suggesting otherwise, that the Defendant could have obtained new funds from HSBC (or other banks in Hong Kong) at an interest rate substantially lower than 36% per annum, used the new funds to repay the Plaintiff in full, and stopped the 36% per annum interest from running.  That he did not do and there was no evidence suggesting he could not have done so, or otherwise found a way to pay off the Plaintiff in full at an early stage.

24.  The point was not so much about what the Defendant should have done.  The point was the Defendant created his own predicament by refusing to pay the Plaintiff in full at an early stage.  If it was the Defendant who created his own predicament (and in my judgment it was), an order for sale should not be considered unjust, unfair or unreasonable to the Defendant.

25.  The current situation created by the Defendant was different from the previous situation (also concerning D’s Flat) in Re Leung Pui Pui Maggie (a bankrupt) [2017] 1 HKLRD 83, where it was the Trustees who asked for an order for sale of D’s Flat and the application was refused by Peter Ng J.  There, the Learned Judge was faced with the effect of an order for sale on an innocent co-owner.  Here, I was faced with an owner who created his own predicament by refusing to pay his own creditor in full.  Further, D’s Affirmation was made on 10 October 2017, and its contents were not before the Learned Judge in Re Leung Pui Pui Maggie.

26.  At the substantive hearing on 9 March 2018, when I suggested to Mr Lam for the Defendant that it could be against the Defendant’s own interests for this matter to be dragged on for the simple reason that the longer the delay, the larger the amount of interests payable by the Defendant, and the smaller the amount of money the Defendant could keep, Mr Lam agreed that that could be one way of looking at the situation.  In my judgment, it was in the Defendant’s own best interests that D’s Flat should be sold as soon as possible so that at the very least the 36% per annum interests could cease to accrue.

27.  Secondly, I agreed it was perfectly proper for the Plaintiff to have rejected the Defendant’s unrealistic “settlement offer”.  If the Plaintiff were to accept a periodic payment of HKD 4,000 per month when the interests payable would be HKD 9,122.62 per month, the “settlement” would have the effect of increasing the quantum of the debt over time, and the Plaintiff would never be able to recover the principal.  It was reasonable for the Plaintiff to have rejected the Defendant’s proposal in the manner as it did.

28.  Thirdly, I agreed there was no“over-security” issue in our present case at all.  The Defendant’s indebtedness as of 9 March 2018 was in the sum of HKD 675,265.67 and the Defendant’s interests in D’s Flat was, according to Mr Lam for the Defendant, worth HKD 2,750,000.00.  Assuming these figures to be accurate, the indebtedness was about 25% of the value of the security.  In my judgement, this did not amount to “over-security” for the purposes of this area of law.

29.  In Robinsonv Bailey, for example, when Simonds J referred to the creditor’s attempt to “lock up so disproportionate an amount of his property to satisfy so small a debt”, he was referring to a ratio of around 0.4% (if one used the “per quarter” figure) to 1.7% (if one used the “per year” figure).  Similarly, in Oldham, Li & Nie, Solicitors v Wong Lin Chooi, when DDJ K Lo referred to “relatively small”, she was referring to a ratio of around 5.2%.

30.  The ratio of 25% in our present case came nowhere near the kind of ratio previously found to be disproportionate.

31.  Fourthly, I agreed it was the Defendant’s own sworn evidence that his hardship was “only temporary”[A/53] and that temporary hardship (even if true) would be relieved by the proceeds of sale.

32.  Indeed, according to Mr Lam for the Defendant (at para 18 of his skeleton submissions), the Defendant recently received HKD 340,000 by way of settlement sums from DCEC 2623 / 2016, and the Defendant commenced the Intended Claim being deposed to in D’s Affirmation on 26 February 2018, claiming HKD 999,465 in common law damages.  These sums were or would be over and above the HKD 500,000 net proceeds of sale the Defendant would be receiving.

33.  In my judgment, a person who had received or would be receiving so much cash could not credibly claim “hardship”.

34.  Indeed, on the evidence placed before me, I was far from satisfied the Defendant or any of his family members would become “homeless” by an order for sale.  I was aware of the general property prices (purchase and rental) and the availability of public or subsidized housing in Hong Kong.  There were a lot of people in Hong Kong who lived in rented units because they could not afford to buy those units.  It was a common and normal phenomenon.  In my judgment, having to rent instead of buy should not be regarded as “hardship”.

35.  Finally, in my judgment, the share capital or scale of operation of the Plaintiff was wholly irrelevant.  Irrespective of the size of its share capital or the scale of its operations, the Plaintiff would still be fully entitled to say it would only accept full payment by a lump sum and reject offers to settle a debt by installments. In fact, irrespective of the size of its share capital or the scale of its operations, the Plaintiff would still be fully entitled to reject offers which would have the effect of asking the Plaintiff to “wait”.

36.  All things considered, it was fair, just and reasonable that an order for sale be granted to the Plaintiff.  In my judgment, there was no“good reason to the contrary”.  I granted the order accordingly.

Costs

37.  The Plaintiff was the successful party.  The Defendant resisted the OS but failed. The Defendant’s offer of settlement was unrealistic and rightly rejected. There was no reason why costs should not follow the event.  I ordered the Defendant to pay costs to the Plaintiff accordingly.

38.  As to Certificate for Counsel, it was resisted by Mr Lam, who was a Solicitor.  In my judgment, it was entirely reasonable, necessary and proper for the Plaintiff to engage Counsel.  There were points of law involved.  I found Counsel’s involvement in this matter of assistance.  I certified the engagement of Mr Au for the Plaintiff as reasonable, necessary and proper accordingly.

39.  A minor issue arose as to how this Court should deal with the costs of the call-over hearing before Master David Chan on 17 October 2017, which had been reserved.

40.  The point made by Mr Lam for the Defendant was that a full week before the call-over hearing, on receiving D’s Affirmation, the Plaintiff should have realized the call-over hearing would have to be adjourned.  Mr Lam wrote to the Defendant on 12 October 2017 (some 5 days before the call-over hearing)[B/188], proposing the vacation of the call-over hearing and adjourning it “to a later date”.  That vacation proposal was never accepted by the Plaintiff, and there was no counter-proposal from the Plaintiff.

41.  When the matter came to be heard by Master David Chan, the need for the matter to be adjourned was correctly pointed out by the Learned Master.  The Learned Master eventually correctly adjourned the matter.  The whole call-over hearing could have been vacated by consent with all directions agreed, as proposed by Mr Lam, in which case some costs could have been saved, though the actual quantum of such costs would be small, as the call-over hearing was very short, and Counsel was never briefed for it.

42.  On this minor issue, I agreed with Mr Lam for the Defendant.  All litigants and their legal representatives had a general duty to “act sensibly” in litigation.  That had been emphasized in, by way of examples, (1) the Judgment of the Court of Appeal, dated 31 August 2017, in Asgain Co Ltd v Cheng Ka Yan [2017] 4 HKLRD 779; (2) the Judgment of Mr Registrar Lung, dated 29 August 2017, in Glory Sky Finance Limited v Chen Jianhua & Fan Hongwei (HCMP 2482 / 2014); (3) the Letter from Mr Registrar Lung to the Chairman of the Bar dated 4 September 2017; and (4) the Bar Circular No. 168/17 dated 3 October 2017, all of which predated Mr Lam’s letter to the Plaintiff dated 12 October 2017 in this matter.

43.  I agreed with Mr Lam for the Defendant that the Plaintiff clearly should have consented to the vacation of the call-over hearing and adjourning it “to a later date” in order to save time and costs.  Even if the precise terms of the draft Consent Summons had to be further discussed and/or worked on, the Plaintiff should have at least made a counter proposal on those precise terms.

44.  In my judgment, bearing in mind the aforesaid general duty to “act sensibly”, the Plaintiff should never have ignored Mr Lam’s proposal regarding the vacation of the call-over hearing in the manner as it did.

45.  It was for the above reason that I craved out an exception from my costs order so that while the general costs for the whole action should be paid by the Defendant to the Plaintiff, to be taxed if not agreed, with Certificate for Counsel, the reserved costs of the call-over hearing before Master David Chan on 17 October 2017 should be paid by the Plaintiff to the Defendant, to be taxed if not agreed.

Final Remark

46.  I thank Mr Clement Au, Counsel for the Plaintiff, and Mr Kenneth Lam, Solicitor for the Defendant, for their able assistance.