XCHRX LA MODE, INC. v. WANG TAI ENTERPRISE (INTERNATIONAL) DEVELOPMENT LTD.

HCA 1290/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1290 OF 2001

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DECISION ON ADJOURNMENT

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1. This is an application by the Plaintiff on the adjourned return date of a Mareva injunction to adjourn the matter further. What had happened was that an ex parte Mareva injunction order had been obtained by the plaintiffs on 10 August 2001. At the hearing on the return date of 17 August 2001, Chung J adjourned the hearing of the summons to today and directions were given for the parties to file affidavits.

2. The 3rd Defendant's affidavit was filed on 31 August within time and therefore the Plaintiff has had one week within which to consider the contents of the Defendant's affidavit. This morning the Plaintiff has sought an adjournment due to various grounds.

3. The first is that the 3rd Defendant and the Plaintiff, through their respective solicitors, have been engaged in negotiations. I say no more about these negotiations, save to say that it would appear to me that in any litigation, until such date as a Consent Summons has been signed by both parties, one would have thought that any litigator would have realised that it is necessary to continue with preparation for the hearing. This is not only the 3rd Defendant's application to discharge the Mareva, it is also the Plaintiff's own summons to continue the injunction.

4. I say this with no criticism whatever of counsel appearing for the Plaintiff in view of the very late instructions given to her, but one would have thought that solicitors who realise that a Mareva injunction is being sought to be discharged or continued would know that no time can be lost in preparation for Mareva applications and that the court would be very strict indeed in expecting that time limits should be complied with. Therefore the fact that there have been negotiations, no matter how close, is not an excuse at all for any application for an adjournment.

5. Secondly, the ground for an adjournment is that the Plaintiff was only given a relatively short time in which to reply to the 3rd Defendant's evidence. In this respect, one should remember that we are not dealing with an ordinary hearing, but with a Mareva injunction. A Mareva injunction is one of the strongest weapons available in the law and the Plaintiff should be ready with his case as soon as possible. I have looked at the Defendant's affidavit. While there are a number of supporting documents, a lot of them are the same types of documents and I do not see how it can be said that 7 days is not adequate for the purposes of preparing a reply.

6. The third ground is that further investigation would be necessary and a number of examples had been raised in Miss Lam's skeleton. Obviously any factual dispute would have to be determined at the end of the day. At the moment, what is necessary for the purposes of the Mareva injunction is for the court to consider whether there is just a serious question to be tried and therefore it does not seem to me that the examples of the issues raised would be adequate for the purposes of getting an adjournment.

7. As for the point made that the 1st and 2nd Defendants would be making discovery pursuant to Chung J's order, in other words, that the Plaintiff could await the results of the discovery made by the 1st and 2nd Defendants before putting in an affidavit to reply, that point had been made before Chung J when he gave the time frame for the Mareva application against the 3rd Defendant and therefore I see nothing in that aspect.

8. As I have said, a Mareva application is a very serious application and it is an application in which time is of the essence. Consequently, I see no reason why I should grant the Plaintiff the adjournment that he seeks.

9. As far as the prejudice to the 3rd Defendant is concerned, its bank has indicated that it is considering its annual renewal of facilities. Miss Lam, counsel for the Plaintiff, has said that given the factual context of the Defendant, it is just to hold a property and also to issue invoices on behalf of another business owned by the persons controlling the Defendant. The fact remains that whether that method of trading or method of business could be undertaken by any other company, the point remains that the 3rd Defendant had been set up to carry on that particular method of doing business (assisting another company by the name of Interhats) and therefore, in my view, there would be prejudice caused by any further adjournment to the 3rd Defendant. Therefore I would not grant any adjournment.