GUANG XIN ENTERPRISES LTD. v. KWAN WONG TAN & FONG (a firm)

HCA 2788/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2788 OF 2001

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J U D G M E N T

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1. On 21 May 2002 I struck out the statement of claim in this action and also ordered that the action be dismissed save and except as regards a cause of action in relation to two companies call "Wantong and Life Circle".

2. On 18 June 2002 I dismissed the Plaintiff's application for a stay of my order of 21 May 2002 pending appeal, but made an unless order giving the Plaintiff a further 14 days to reformulate its claim in relation to Wantong and Life Circle failing which the whole action was to be dismissed. The 14-day period had already expired.

3. The parties came before me this morning on the Plaintiff's further application to stay my order of 18 June pending an appeal from that order. If I may say so, from the skeleton of counsel representing the Plaintiff, there are some, I should say, powerful arguments as to why I should exercise my discretion staying my order of 18 June 2002. However, I regret to say that those arguments were not put before me when I last heard the parties on 18 June.

4. The position as I see it today is this, my order having been made on 18 June takes effect under O.42 R.3 from the day when the order was made. It follows that the action was dismissed after the expiration of the 14-day period.

5. This position can only be saved if there was either an application for extension of time and an order was made extending time for the Plaintiff to make the present application or there was a consent order between the Plaintiff and Defendant extending the 14-day period to a period within which a court can hear the Plaintiff's present application. Neither of those two things happened.

6. It is I think trite law that an application for time by itself or an application for stay by itself does not have the effect of staying any court order made. For these reasons, I am of the view that the action had already been dismissed upon the expiration of the 14-day period and I am therefore functus officio and I do not have any further power to deal with this matter.

7. Having come to that conclusion, I should perhaps say this that given the history of the matter it is perhaps just as well that the action be dismissed because the matter is now fully before the Court of Appeal. If the Court of Appeal finds that my order made on 21 May 2002 is not correct, then of course the Plaintiff would be able to either reinstate their previous statement of claim or, if they so wish and with the leave of the Court of Appeal, reformulate their claim in the way that they desire.

8. In these circumstances, I regret to say that the Plaintiff's application has to be dismissed with costs.