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Tang Siu Nam v Tang Chi Man

Judgment Cited authorities 5 Cited in 1 Precedent Map Related
Vincent
Judgment Date20 August 2019
Neutral Citation[2019] HKDC 1099
Judgement NumberDCMP886/2015
Citation[2019] 4 HKLRD 312
Year2019
Subject MatterMiscellaneous Proceedings
CourtDistrict Court (Hong Kong)
DCMP886/2015 TANG SIU NAM v. TANG CHI MAN

DCMP 886 / 2015

[2019] HKDC 1099

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 886 OF 2015

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IN THE MATTER OF the property known as ALL THOSE 54 equal undivided 85,116th parts or shares of and in ALL THAT piece or parcel of ground registered in the Land Registry as ABERDEEN INLAND LOT NO. 435 (“the Land”) And of and in the messuages erections and buildings thereon known as “Broadview Court” TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT FLAT C on the 21st Floor of Block 4 of Broadview Court (Flat C on 21st Floor of Block 4, Broadview Court, No. 11 Shum Wan Road, Hong Kong) (“the Property”)
and
IN THE MATTER OF Section 6 of the Partition Ordinance, Cap. 352 and Order 31 of the Rules of the District Court, Cap. 336H, Laws of Hong Kong

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BETWEEN
TANG SIU NAM (鄧兆南) Plaintiff
and
TANG CHI MAN (鄧志文) Defendant

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

Before: Deputy District Judge Kenneth KY Lam in Chambers

Date of Hearing: 18 April 2019

Date of Decision: 18 April 2019

Date of Reasons for Decision: 20 August 2019

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

REASONS FOR DECISION

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Introduction

1. At a substantive hearing on 18 April 2019 (“the Hearing”), I heard an application, made against the Plaintiff (“P”) by way of an Inter Partes Summons (“the Summons”) taken out by the Defendant (“D”) on 22 March 2019, and made the following orders: -

(1) This action be dismissed for want of prosecution;

(2) The costs of this action, including the costs of the Hearing and all costs previously reserved, be paid by P to D on full indemnity basis, to be taxed if not agreed; and

(3) D’s own costs be taxed in accordance with the Legal Aid Regulations.

(Collectively, “the Decision”)

2. I indicated at the Hearing that I would hand down my reasons for the Decision in writing, which I hereby do.

The Background

3. P was D’s father. On 20 February 2001 (date of the relevant sale and purchase agreement), P and D bought the Property as joint tenants. They completed that transaction on 24 December 2001 and registered their joint ownership on 17 January 2002.

4. On 31 March 2015, P issued an Originating Summons (“the OS”), asking for the compulsory sale of the Property pursuant to Section 6 of the Partition Ordinance (Cap 352). P did not file or serve his Affirmation in Support until 12 August 2015. More importantly, P did not do anything after that.

5. At all material times, P was represented by a firm of solicitors called George Chan & Co (陳浩基律師行) (“GCC”). On 15 August 2017, the Council of the Law Society of Hong Kong passed a resolution pursuant to Section 26A(1)(c) of the Legal Practitioners Ordinance (Cap 159) (“the LPO”) to intervene in the practice of GCC, and to appoint another firm of solicitors called Chui & Lau (“C&L”) to act as its intervention agent. On 17 August 2017, the Law Society of Hong Kong informed its members of the aforesaid intervention by Law Society Circular 17-675 (COM).

6. At all materials times, D was on legal aid. By September 2017 D’s solicitor (on assignment by the Director of Legal Aid) was Ms Kate Li (“Ms Li”) of Raymond Siu & Lawyers (“RSL”). On 28 September 2017, no doubt because of the aforesaid Law Society Circular, RSL wrote to C&L to make inquiries. C&L wrote back on 29 September 2017 and said: -

“… Unfortunately, the file is not among the files seized by us from the Firm. In the circumstances, we are not in a position to assist in the matter.”

7. After some further correspondence, D eventually took out the Summons, and obtained an order for its substituted service.

8. On 17 April 2019 (i.e. the day before the Hearing), D filed an affirmation to inform this Court that on or about 13 April 2019, he became aware of the death of P (his own father) via social media. D exhibited what he read. Apparently, according to “a Facebook post” dated 9 April 2019, P passed away in February 2019. Prior to his death, P was awanton mee chef in Singapore.

The Law

9. As pointed out by Ms Li, solicitor for D, the District Court has the same jurisdiction as the High Court to dismiss an originating summonsaction for want of prosecution. Order 28 rule 10 of the RDC is identical to Order 28 rule 10 of the RHC. An interesting argument arose as to whether the same test for “want of prosecution” applied irrespective of whether the action was commenced by originating summons or by writ. I should deal with this first.

10. Ms Li, in her most able attempt to persuade me different tests applied, helpfully drew my attention to two cases decided in the 1980s. In United Bank Ltd v Maniar [1988] 1 Ch 109 at 111H to 112D, Millett J (as Lord Millett NPJ then was) said different tests applied, citing the different nature of the originating summons procedure (when compared to the writ action procedure) as the reason. That was promptly cited with approval in Hong Kong by Godfrey J (as Godfrey VP then was) in Yau Fook Hong Co Ltd v Commissioner of Inland Revenue [1989] 2 HKC 514. However, in my judgment, the ratio of United Bank was no longer good law (whether here or in England) and should no longer be followed in Hong Kong.

11. First of all, United Bank had since been expressly disapproved by the English Court of Appeal in Halls v O’Dell [1992] 1 QB 393 at 402-D to 404-G per Balcombe LJ, for good logical reasons, and was no longer good law in England. Secondly, and a lot more importantly, Ma CJ had in the post-CJR case of Wing Fai Construction Co Ltd v Yip Kwong Robert (2011) 14 HKCFAR 935 restated the principles governing “striking out or dismissal for want of prosecution” applications, and said the following (at 974, paragraph 76): -

“… In the light of the restated principles, I would think that it will seldom be necessary to refer to those authorities that do not take into account the procedural changes under the CJR (or the Woolf Reform).”

12. In my judgment, by reason of Ma CJ’s restatement, whatever the true position was before Wing Fai Construction, in most cases the only principles which should now be governing “striking out or dismissal for want of prosecution” applications, whether the action was commenced by originating summons or by writ, should be the ones restated in Wing Fai Construction.

13. And what were those restated principles? In gist: -

(1) Striking out is a remedy of last resort and should only be used in plain and obvious cases. Greater use should be made of other powers of the court, thus avoiding an “all or nothing” approach to dismissal.

(2) Abuse of process is the foundation for the exercise of the jurisdiction to strike out for delay. It can take many forms. Mere delay, without more, does not suffice. It includes delays which are inordinate and inexcusable and causing prejudice to a defendant, or contumelious conduct. It may take forms such as “warehousing” of claims, inexcusable non-compliance with or wholesale disregard of an order of the court or the rules of court, and litigation anxiety (Biss prejudice).

(3) When considering “delay”, it is important that it should be both inordinate and inexcusable, and abuse is shown. It is not the law that mere delay would be sufficient to justify an order to strike out.

(4) Where abuse is demonstrated, for example where there was contumelious conduct on the part of the plaintiff, proceedings can be struck out even where prejudice to the defendant cannot be shown.

(5) The conduct of the parties is relevant both to the critical question of abuse and to the overall justice of the case. Post-CJR, where all parties to the proceedings have the obligation to prosecute the proceedings and assist the court in furthering the underlying objectives it...

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1 cases
  • Kristen Lee Also Known As Lee Man Tuen Tobby v Santa Fe Transport International Ltd
    • Hong Kong
    • District Court (Hong Kong)
    • 10 January 2020
    ...of the firm had been intervened under the Legal Practitioners Ordinance and had effectively come to an end: Tang Siu Nam v Tang Chi Man [2019] 4 HKLRD 312, [2019] HKDC 1099 at para 24, citing Sheikh v Law Society [2007] 3 AII ER 183 at para 110. Unlike an application under Order 67, rule 6,......

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