WU HAIJUN AND ANOTHER v. UNITED WEALTH GOLD & SILVER LTD

HCA 1550/2016

[2020] HKCFI 1614

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1550 OF 2016

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DECISION

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1.  This is the hearing of the summons dated 2 July 2020 (the “Summons”) taken out by the plaintiffs (“Ps”) for an order that the time for them to give security for the defendant’s (“D”) costs of the action pursuant to the Order made by Master K W Wong dated 4 June 2020 (the “Master Wong Order”) be extended for 28 days from the date of the Order to be made.

2.  On 28 May 2020, the parties, all legally represented then and now, filed a consent summons for an order that Ps do within 28 days from the date of the Order to be made give security for D’s costs of and occasioned by the action up to the end of the trial in the sum of HK$400,000 by making lodgment in court of the said amount, and that in default of such payment, Ps’ claims hereof against D do stand dismissed without further order.

3.  On 4 June 2020, the Master Wong Order was made.

4.  The 28‑day period expired on 2 July 2020.

5.  On 2 July 2020, Ps took out the Summons.

6.  No evidence in support of the Summons has been filed.  No explanation has been offered as to why the proposed extension is necessary.  No evidence has been placed before me as to what steps Ps have taken in their attempt to comply with the Master Wong Order.  If the present application has been necessitated by Ps’ financial position, which I assume it is, no evidence has been placed before me suggesting that their financial position would improve in the near future so that they could meet the payment‑in with the benefit of the extension.

7.  On 13 July 2020, Mr Chan, counsel for Ps, filed his submissions in support.  He submits that granting the application will cause no undue delay, that D has not shown any prejudice, and that any prejudice can in any event be compensated by costs.  During the hearing, Mr Chan orally informs me that Ps in fact need 56 days, and he seeks leave to amend the Summons accordingly.

8.  Mr Chan has with respect ignored the obvious fact that court orders are there for the parties to comply with.  If indulgence of the court on time is sought, reasons are expected to be given.  It is particularly so in the case of an unless order, which the Master Wong Order in effect is — see the Hong Kong Civil Procedure 2020, §3/5/5 and 3/5/6.   

9.  Mr Cheung, counsel for D, opposes the application.  He points out that the Master Wong Order was made by consent.  Ps were represented at all times.   He submits that no good or reasonable reason for any extension has been provided.  He has placed before me a number of authorities illustrating how the courts’ discretion to enlarge time has been exercised.

10.  As I have observed above, no evidence has been placed before me in support of the application.  No reason, good or even bad, has been advanced to justify the application.  The Summons was taken out on 2 July 2020.  That was some 13 days ago.  Nothing has been placed before me explaining what Ps have been doing during those 13 days, and what further they can do during any extended period in any endeavor to comply with the Master Wong Order.

11.  Given what I have explained above, the Court is entitled to exercise its discretion against the application.  I however look at the overall justice of the case.  Ps’ claim will stand dismissed if I were to dismiss their application today.  It is a grave consequence.  While in a way it can be said to be self‑induced (particularly so in this case when the Master Wong Order was made by consent), I am prepared to give Ps a final chance to rescue their case by giving them a short extension of 5 days from the date hereof.  They should also bear the costs of this application, which I summarily assess at HK$20,000, to be paid by Ps to D within 5 days from the date hereof.