REES TAYLOR FINANCE LTD v. CHEUNG YU TIN ALVIN

DCCJ2081/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2081 OF 2006

R U L I N G

1.  The defendant’s legal representative, Miss Cheung, applies today for an adjournment of the hearing of the summary judgment application issued by the plaintiff on 24 June 2006 on the ground that her firm did not have notice of the summons until 5.30 pm on 31 October 2006, that is last Tuesday, two days ago.  Miss Cheung informed me that there was insufficient time for her to prepare the defendant’s defence and file a supplemental affidavit.  This application is opposed by Miss Sit, counsel for the plaintiff.

2.  In a normal, ordinary case, where the summons was issued four months before the hearing, there should be little excuse for an adjournment on the date of the hearing.  This is particularly so where the plaintiff has alleged the defendant had delayed the hearing repeatedly, citing his numerous attempts to apply for legal aid unsuccessfully.

3.  On his third attempt, the defendant succeeded in obtaining legal aid.  The legal aid certificate was issued on 25 October 2006 and it stated that a firm of solicitors had been assigned to represent the defendant.  The court record of the legal aid certificate showed that it was received by the court registry at 11.45 am on 27 October 2006, which was last Friday.  The defendant’s legal representative, Miss Cheung, informed this court that she did not receive a copy of the plaintiff’s 24 June 2006 Order 14 summons until she was given the hearing bundle for today’s hearing by her lay client, Mr Cheung, at 5.30 on 31 October 2006.  Miss Sit confirms to me that the defendant was told to collect the bundle and the skeleton submission on Saturday morning but he had only attended the plaintiff’s solicitor’s office to collect the documents at 5 pm on 31 October 2006.

4.  Miss Cheung applies for an adjournment of today’s hearing and for leave for the defendant to file a supplemental affidavit because the defendant’s previous 19 September 2006 affidavit was a home-made affidavit.  Miss Cheung considered a supplemental affidavit in opposition should be filed before the hearing and she required an opportunity to take full instructions from the defendant.

5.  I have found it rather perplexing that the Legal Aid Department’s bundle of documents sent to Miss Cheung’s firm should have left out the 24 June 2006 summons.  The hearing of this summons had been delayed due to the defendant’s two applications to the Legal Aid Department which no doubt  had caused the stay of these proceedings on no less than two occasions due to the operation of the law.

6.  Today’s hearing date was fixed after the preliminary hearing before the master on 4 September this year, soon after the second Legal Aid application was refused.  Although the hearing of the summons of 24 June 2006 had been long delayed, there were no applications for the hearing date to be vacated until this morning.

7.  I am conscious of the inconvenience caused to the plaintiff and to the court’s diary by a further delay of the hearing of this summons.  On the other hand, the court has to weigh these against the prejudices to the defendant if the hearing is to continue today, when the defendant had only been assigned a legal representative just before a long holiday began and when his solicitor represented to court that she had not received any notice of today’s hearing until Tuesday at 5.30 pm, even though the defendant must have had full knowledge of this hearing date since some time in September.

8.  As Miss Cheung is an officer of the court, the court is prepared to accept the representations she made in court that she had no notice of  the 24 June 2006 summons until the date she claims she was given a bundle of documents, which was on 31 October - two days ago.  For the aforesaid reasons, I am prepared to allow the adjournment application.  I order that :

(1)      today’s hearing be adjourned to 9.30 am on 7th December 2006 in Court 16;

(2)     I grant leave to the defendant to file supplemental affirmation within 14 days hereof;

(3)     leave to the plaintiff to file an affidavit in reply, if any, within 14 days thereafter;

(4)     no further affidavit without leave of the court.

(Discussion re costs)

Costs

9.  The costs of today’s hearing is thrown away to be taxed if not agreed with certificate for counsel.