FORTIS BANK ASIA HK v. SINO GLOBAL INTERNATIONAL LTD AND OTHERS

bjbj HCMP4950/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 4950 of 2001 ____________________ BETWEEN FORTIS BANK ASIA HK Plaintiff and SINO GLOBAL INTERNATIONAL LIMITED 1st Defendant WALL INTERNATIONAL INVESTMENTS LIMITED 2nd Defendant GREAT HONOUR INVESTMENTS LIMITED 3rd Defendant ***************** HCA298/2002 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 298 of 2002 ____________________ BETWEEN GREAT HONOUR INVESTMENTS LIMITED 1st Plaintiff WALL INTERNATIONAL INVESTMENTS LIMITED 2nd Plaintiff and KO YIN 1st Defendant SINO GLOBAL INTERNATIONAL LIMITED 4th Defendant (By Original Action) AND BETWEEN KO YIN Plaintiff and GREAT HONOUR INVESTMENTS LIMITED 1st Defendant WALL INTERNATIONAL INVESTMENTS LIMITED 2nd Defendant WANG YAN 3rd Defendant (By Counterclaim) ___________________ Coram: Hon. Reyes J in Chambers Date of Hearing: 26 January 2004 Date of Judgment: 26 January 2004 ____________________ J U D G M E N T ____________________ I would allow the appeal against the Master s order allowing joinder of Li, Wong & Lam as a party to Action No. 298 of 2002. The appeal before me seems to involve a matter of case management. Wing Mo v Cosmic Insurance, unrep., HCCT 40 of 2001, 6 June 2002, is authority for the proposition that the stage at which Actions 4950 and 298 have reached and the delay that may be caused by the proposed joinder are factors to be taken into account in deciding whether to permit joinder. I am concerned about the delay that the introduction of the solicitors as a party to 298 is likely to bring to these proceedings. I do not agree with Mr Leong SC that because the bank conceded to the re-amendments in 4950 that there will inevitably be delay to 4950 and 298 in any case. The ambits of the proceedings with and without the proposed joinder are not the same. The allegation against the bank is whether the solicitor s knowledge can be attributed to the bank, whether or not the solicitors were negligent. The proposed action against the solicitors alleges negligence against them, whether or not their knowledge can be attributed to the bank. There are, indeed, overlapping issues. But I suspect that the facts to go into in the solicitors negligence inquiry will be much greater. The questions to be gone into in the application vis- -vis the bank will largely be a question of law as to the knowledge that can be attributed to an agent. Delay in this matter would come on top of time already lost in respect of Wall International s and Great Honour s allegations in 4950 relating to fraud. These allegations have since been abandoned without explanation. I am also not satisfied with the explanation for the time interval in taking out the joinder application. I refer here to the time between April 2003 (when it is said that Jimmy Wong s involvement was clarified) and September 2003 (when the application for joinder was taken out). I am conscious of the danger of limping judgments. In my view, the appropriate course is for Great Honour and Wall International to proceed separately against the solicitors for the time being. The onus would then be on Great Honour and Wall International to advance those separate proceedings with dispatch such that, if they are able to catch up with the main proceedings in 4950 and 298, they can apply at that stage for consolidation. (Submissions on costs) The costs before me are to go to the plaintiff, that is, to the bank, in any event, to be taxed if not agreed. I will reverse Master Au Yeung s order awarding 50 per cent of the costs in relation to the joinder issue against the bank. I will reverse that order to that extent. I order instead that the costs of the bank in relation to the issue of joinder be paid by Great Honour and Wall International to the bank. In relation to the other costs before the Master on the joinder issue (that is, the costs of Ko Yin and Sino Global before the Master), I give Ko Yin and Sino Global liberty to apply on the question whether, in the light of what has happened today, the costs order of Master Au Yeung on the issue of joinder should be altered in any way. (A T Reyes) Judge of the Court of First Instance Mr C W Ling, instructed by Messrs Wilkinson & Grist, for the Plaintiff in HCMP No. 4950 of 2001 The 1st and 4th Defendants (By Original Action) and Plaintiff (By Counterclaim) in HCA No. 298/2002, represented by Messrs Alan Ho & Co., absent Mr Alan Leong, SC, and Mr Bernard Man, instructed by Li & Partners, for the 2nd and 3rd Defendants in HCMP No. 4950/2001 and the Plaintiffs (By Original Action) and 2nd and 3rd Defendants (By Counterclaim) in HCA No. 298/2002 PAGE - PAGE - CRT19/26.1.2004/SA HCMP4950/2001/Judgment A B C D E F G H I J K L M N O P Q R S T U V A B C D E F G H I J K L M N O P Q R S T U V A B C D E F G H I J K L M N O P Q R S T U V A B C D E F G H I J K L M N O P Q R S T U V &`#$ HCMP4950/2001 HCT_TRANS_11 JUDGE.DOT setup Microsoft Word 9.0 judiciary HCMP4950/2001 Title Microsoft Word Document MSWordDoc Word.Document.8