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Mansion House Securities Ltd. And Another v Chong Chi Yan

Judgment Cited authorities 8 Cited in Precedent Map Related
Vincent
Judgment Date24 September 1986
Subject MatterCivil Appeal
Judgement NumberCACV104/1986
CourtCourt of Appeal (Hong Kong)
CACV000104/1986 MANSION HOUSE SECURITIES LTD. AND ANOTHER v. CHONG CHI YAN

CACV000104/1986
IN THE COURT OF APPEAL Civil Appeal
No. 104 of 1986

BETWEEN

Mansion House Securities Ltd. 1st Plaintiff
(1st Respondent)
Mansion House Commodities Ltd. 2nd Plaintiff
(2nd Respondent)

AND

CHONG Chi-yan

 Defendant
(Appellant)

Coram: Kempster & Clough, JJ.A.

Date of hearing: 24 September 1986

Date of judgment: 24 September 1986

__________

JUDGMENT

__________

Clough, J.A.

1. The defendant in this action appeals from the order for costs made by Deputy Judge Sharwood in Chambers on the 21st July, 1986. The order was made on the day the action was to be tried in the Running List, on a summons dated the 18th July, which was a Friday, issued by the defendant and served short of time. The summons was therefore heard at 9:30 a.m. on the day the action was listed for trial. By his summons the defendant applied for the action to be removed from the warned list and restored not before the 12th September, 1986.

2. The action by the two plaintiffs, who are respectively gold dealers and commodity brokers, claims substantial sums (about US$1 million and HK$730,000 or damages in the alternative) against the defendant, arising out of alleged dealings between the parties. The defendant has counterclaimed for US$433,000 odd or damages in the alternative.

3. The background of the action is briefly as follows. The writ was issued on the 2nd October 1984 and amended on the 17th January, 1985. The Statement of Claim was filed on the 10th January, 1985 and amended on the 16th April, 1985.As a result of an unsuccessful application for summary judgment under O.14, Master Betts made a consent order on the 1st July, 1985 giving leave to defend and the usual consequential directions setting the time-table for the action which was directed to be set down for trial, estimated to take three days, in the Running List within 56 days of the order.

4. Accordingly if the Master's directions had been complied with the trial would almost certainly have taken place before the end of 1985. However the directions were not complied with. The pleadings were in fact closed by the 28th September, 1985 or thereabouts. The Master had directed that both parties were to make discovery on affidavit within 14 days after the close of the pleadings and that inspection was to follow within seven days thereafter. In the event the plaintiffs did not make discovery until June this year. On the 9th June, 1986 the plaintiffs' solicitors sent their clients' lists of documents to the defendant's solicitors and asked them to agree to the filing of the lists out of time. On the 17th June the defendant's solicitors made the necessary endorsement of their consent after receiving a reminder from the plaintiffs' solicitors on the same day.

5. On the 21st June the plaintiffs' solicitors indicated that they were pressing on to the trial of the action. By their letter of that date the plaintiffs solicitors required the defendant to file his list of documents on or before the 25th June. They also required to know within four days the number of witnesses the defendant intended to call and whether the original estimate of the length of the trial at three days still held good so far as the defendant was concerned.

6. On the 24th June there was inspection of the plaintiffs' documents by the defendant's solicitors. On the 25th June the defendant's solicitors wrote to the plaintiffs solicitors to complain that the originals of the three transcripts of telephone conversations between a representative of the plaintiffs and the defendant had not been available for inspection. This was because they had been submitted to the court for verification and certification of the English translations. Correspondence followed about the obtaining of copies of the relevant transcripts and of other documents.

7. On the 26th June the plaintiffs' solicitors set down the action for trial.

8. On the 11th July, which was a Friday the action appeared in the warned list. On Monday the l4th July Mr. David Wong, the defendant's then solicitor, telephoned Mr. Spencer Lee, the plaintiffs' solicitor, and asked him to agree to an application for the case to be taken out of the warned list and restored a month later because it was unlikely that Mr. Wong's firm wouldbe ready for trial as matters stood. Mr. Lee evidently said he would only consider a formal request for consent to such an application.

9. On the 15th July there was inspection and verification of the relevant tapes and transcripts by the defendant's solicitors and the defendant. The defence claims, but the plaintiffs do not accept, that there are material additions and mistakes in the transcripts and that full discovery has not been made by the plaintiffs.

10. On the 16th July Mr. Wong sent a telex to plaintiffs' solicitors formally requesting that they consent to an application for the case to be taken out of the warned list. The telex required a reply by 10 a.m. the next day and indicated that if there was no reply the defendant's solicitors would forthith apply to the court for an order. On the 18th July 1986 the plaintiffs' solicitors replied refusing to agree to a consent application to remove the action from the warned list, denying that there were material errors in the transcripts of the tapes and inter alia reminding the defendant's solicitors that there had been no response to the plaintiffs' solicitor's letter dated 21st June, 1986 calling for discovery by the defence in compliance with Master Betts' order.

11. On the same day the defendant's solicitors issued the summons which led to the order of Deputy Judge Sharwood which is the subject of this appeal. The summons was supported by the affirmation of Mr. Wong in which he gave his version of the events leading up to the impasse between the solicitors of the parties. He complained that the case had been set down before discovery had been completed and stressed the high degree of materiality of the tapes and transcripts and the errors he alleged to exist in the transcripts. He further complained about the conduct of the plaintiffs' solicitors in setting down the action when they knew that discovery had not been properly completed and claimed that the defendant would be greatly handicapped in having to prepare for trial in great haste. He invited the court to take these matters into consideration in relation to the costs of the application.

12. On the 21st July, when the summons was heard by the deputy judge, the plaintiffs consented to an adjournment of the trial which was listed to be heard that day. The only dispute was as to costs. The order made by the deputy judge directed the removal of the action from the warned list to be set down in the fixture list with a revised estimate of a 10 day trial. The order also included leave to the defendant to serve his list of documents out of time and leave was given to both parties to serve supplementary lists.

13. The deputy judge took the view that it had been open to the defendant to apply to have the action taken out of the warned list...

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