FUJIAN XUN JIE TELECOMMUNICATION TECHNOLOGY SERVICE LTD, XIAMEN BRANCH v. CHAN WAH TSANG DAVID

HCA2451/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.2451 OF 2006

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R U L I N G

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1. There is before me a notice of appeal by the defendant dated 17 July this year appealing against the order of Mr Registrar Chan dated 6 July refusing general extension of time to the defendant to file its defence.  There is also before me the defendant’s time summons dated 27 July which was adjourned by Master Yu on 3 September to be heard together with this appeal.  

2. The background to this matter is as follows.  The defendant issued a summons dated 8 June this year applying for general extension of time to file its defence 21 days after service of the plaintiff’s Answer to Further and Better Particulars of the Statement of Claim.  That application was refused by Mr Registrar Chan on 11 June.  The Registrar ordered the defendant to file and serve its defence 21 days from 11 June.  This was not complied with by the defendant. 

3. On 28 June, the defendant issued its 2^nd summons applying for the plaintiff to serve Answers to Further and Better Particulars within seven days.  On 3 July, the defendant issued yet another summons once again applying for general extension of time to file its defence 21 days after service of the Answers to Further and Better Particulars by the plaintiff.  

4. These last two summonses came before Mr Registrar Chan on 6 July this year.  At that hearing, the Registrar dismissed the defendant’s time summons and ordered the Defence to be filed within 21 days from 6 July.  He also adjourned the summons for Further and Better Particulars for argument. 

5. The defendant now appeals against Mr Registrar Chan’s dismissal of its time summons on 6 July.  The defendant also took out yet another time summons dated 27 July, essentially asking for the same thing as in this appeal.  

6. The entire basis of the defendant’s appeal would appear to be that he needed to see the Answers to the Further and Better Particulars before he can draft the defence.  That was the very same basis upon which he applied on both occasions before Mr Registrar Chan for the extension of time but which was obviously rejected by the Registrar.  

7. Having read the Statement of Claim myself and also having read the defendant’s request for the Further and Better Particulars sought of the Statement of Claim as well as having heard defence counsel on this issue, I am not the least persuaded that there is any merit on the basis put forward by the defendant.  

8. Order 18, rule 12(5) reads as follows :

“	An order under this rule should not be made before service of the defence unless in the opinion of the court, the order is necessary or desirable to enable the defendant to plead or for some other special reasons.”

9. I am of the view that the Particulars sought were neither necessary nor desirable to enable the defendant to plead its defence and there being no other reasons, I do not see why the defence cannot be filed before delivery up of the Particulars.  Although the hearing for the Further and Better Particulars are scheduled to be heard next week for the reasons given above I can see no good reason for the defendant to delay filing their defence. 

10. Indeed, the defendant has by now failed to comply with two orders of Mr Registrar Chan to file its defence.  The writ in the present case was issued in November 2006.  Here in September 2007 the defence has still not been filed or served.  

11. I take the view that these applications by the defendant for extension of time to file its Defence were all made for an ulterior motive, namely to delay the filing of Defence.  For these reasons, this appeal is dismissed.  For the same reasons, the application under the time summons adjourned to me by Master Yu is also refused.

12. I shall make the following order that unless the defendant files its defence by 4:00 p.m. on 24 September this year, judgment be entered in favour of the plaintiff on the plaintiff’s claim in default of defence. 

13. Insofar as costs is concerned, I take the view that the conduct of the defendant himself being a practicing solicitor in continuously delaying the filing of the defence amounts to nothing less than scandalous.  Therefore, the costs of this appeal is to be borne by the defendant on an indemnity basis to be taxed and paid forthwith. 

14. Likewise the costs of the time summons including the cost before the Master on 3 September be borne by the defendant, also on an indemnity basis, to be taxed and paid forthwith.  In so ordering costs, I have declined the plaintiff’s suggestion to make a gross sum assessment because the skeleton bill of costs put before me by the plaintiff, a copy of which was only made over to defence counsel this morning at the hearing, and I can sympathize with defence counsel being taken by surprise by that skeleton and not in a position to take full instructions on it.  For that reason, I decline the gross sum assessment.