Chinachem Financial Services Ltd v Century Venture Holdings Ltd

CourtHigh Court (Hong Kong)
Judgment Date05 April 2017
Judgement NumberHCA410/2013
Subject MatterCivil Action
HCA410D/2013 CHINACHEM FINANCIAL SERVICES LTD v. CENTURY VENTURE HOLDINGS LTD

HCA 410/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 410 OF 2013

_________________________

BETWEEN
CHINACHEM FINANCIAL SERVICES LIMITED Plaintiff
And
CENTURY VENTURE HOLDINGS LIMITED Defendant

_________________________

HCMP 2299/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2299 OF 2013

_________________________

IN THE MATTER of the Affirmation of Lam Yee Hung dated 18 June 2013 filed in the High Court Action No 410 of 2013
and
IN THE MATTER of Section 21L of the High Court Ordinance (Cap.4)
BETWEEN
CHINACHEM FINANCIAL SERVICES LIMITED Plaintiff
And
CENTURY VENTURE HOLDINGS LIMITED Defendant

_________________________

Before: Before Master J Wong in Chambers (Open to Public)

Date of Hearing: 3 March 2017

Date of Decision: 5 April 2017

_______________

D E C I S I O N

_______________

Introduction

1. There are 2 reviews of taxation before this court..

Background

2. The background of parties’ disputes can be located in four written decisions having handed down by two Judges in the present action.

(a) Deputy High Court Judge Ramanathan, SC dated 25 March 2014,

(b) Deputy High Court Judge Ramanathan, SC dated 7 May 2014,

(c) Deputy High Court Judge Marlene Ng dated 8 January 2015, and

(d) Deputy High Court Judge Marlene Ng dated 21 April 2015.

3. For the present purpose, it suffices to set out the followings.

4. The plaintiff was and is a Hong Kong company. The defendant was and is a BVI company, specialising in providing service to handle claims and debt disputes in PRC.

5. On 7 March 2013, the plaintiff commenced HCA 410/2013 in Hong Kong against the defendant for various declarations, including that the service agreement expired by effluxion of time or had been duly terminated, and as such, the plaintiff needed not pay any remuneration to the defendant.

6. The defendant then issued a summons to apply to stay the HK action. A director of the defendant prepared the supporting affirmation.

7. The plaintiff took issues on the supporting affirmation, including that it contained privileged materials disclosed by its former CEO. The plaintiff therefore applied, among others, to strike out those objectionable parts.

8. Parties went before the Hon. G. Lam J. for the call‑over hearing of the striking out summons. Upon consideration, the learned Judge directed, inter alia, a speedy trial for the hearing with 2 estimated days and that no affidavit evidence might be relied upon unless the deponents would be tendered for examination via video link.

9. During the said hearing, the learned Judge raised a procedural point as to whether the relief sought was interim or final in nature. Out of caution, the plaintiff issued HCMP 2299/2013 (the “MP action”) seeking in essence and in substance the same relief in HCA 410/2013 (the “HC action”).

10. With these 2 proceedings, parties appeared before Deputy High Court Judge Ramanathan, SC. They were represented by 2 counsel, including one SC on each side. The hearing overran for 4 days and took a total of 6 days in October 2013. On 25 March 2014, the learned Deputy Judge handed down his detailed judgment. To cut short the long story, he agreed with the plaintiff and granted the relief sought, including an injunction against the defendant for any disclosure publication or dealing with in any way the privileged materials. A costs order nisi (together with certificate for 2 counsel) was awarded to the plaintiff.

11. On 7 May 2014, parties went back before the learned Deputy Judge and sought to clarify/vary the costs order nisi, asked for leave to appeal, so and so forth. The Judge declined to vary his costs order nisi and it is indeed such costs order (having made absolute) the origin of the present taxation and review.

12. Regarding the stay summons, parties later appeared before another Deputy High Court Judge Marlene Ng for one day in October 2014, with 2 counsel on each side, including one SC. In the end, on 8 January 2015, the learned Deputy Judge dismissed the stay application with costs to the plaintiff with certificate for 2 counsel.

13. Although there was no application for variation of the costs order nisi on this occasion, the defendant tried to seek leave to appeal the decision against it in the stay summons. The learned Judge heard it in April 2015 and dismissed it within the same month by her written decision dated 21 April 2015.

14. Pursuant to the said costs order made by Deputy High Court Judge Ramanathan, SC, the plaintiff filed 2 bills, one in the HC action and another one in the MP action. I dealt with the taxation of them on 6 September 2016. The defendant was not satisfied with the result and took out a review application.

15. On 27 October 2016, I dealt with the call‑over hearing of the reviews. After hearing, I adjourned them to a date to be fixed before me with 3 hours reserved. During the submissions, the solicitor acting for the defendant raised that 2 objections in the bill relating to the MP action had not been taxed and asked to do so then. The LCD for the plaintiff disagreed. Among others, including that there was even no formal summons before the court, I asked parties to see if anything could be agreed, failing which proper application should be issued.

16. The defendant then issued another summons in MP action on 27 February 2017 seeking to restore the 2 “untaxed” items for taxation. The summons was returnable before me at the substantive hearing of the present review.

17. Parties appeared before me on 3 March 2017 for both the said summons and the taxation. In the former matter, I had the assistance from 2 solicitors. Mr. A. Mok acted for the plaintiff and Mr. Y.K. Leung represented the defendant. As to the review, it was handled by 2 LCDs, Mr. A. Fung for the plaintiff, and Mr. A. Cheung, for the defendant. Having heard from the parties, I adjourned my decision to be handed down. Here it is.

The Summons

18. Upon thought, I have decided to allow the summons and treat the 2 items as if they were brought before me by way of review.

(a) There is no doubt that the defendant intended to object these 2 items. Objections can be located in the list of objection having filed.

(b) There is also no doubt that (at least on balance) these 2 items were left “untaxed” because of oversight on the part of the 2 LCDs as well as me at the taxation.

(c) Parties have not been able to produce any authority for or against their arguments. We have also been unable to dig out any assistance from the HKCP 2017.

(d) However, allocator has not been issued and this court therefore retains jurisdiction to deal with the oversight and rectify the mistake.

(e) As parties have come before me for the purpose of review, it must be the most...

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