XCHRX CHUN KAM CHIU v. WAY PRESS INTERNATIONAL

HCSD 38/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HCSD NO. 38 OF 2000

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D E C I S I O N

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1. This is an application by summons of 7 February 2001 in which the Respondent is seeking an order that the hearing today be adjourned to 15 February, so that it can apply for an extension of time to comply with paragraph (a) of Chu J's order of 7 December 2000.

2. I see no good reason why this hearing fixed for today should be adjourned. On 24 November the parties had attended before Chu J, at which point in time, the affirmation of the Applicant to set aside his Statutory Demand had been filed for one month. During that period of one month, no affirmation in opposition had been filed by the Respondent. When the parties appeared before Chu J on 24 November, she gave directions that the Respondent should file any evidence in opposition within 7 days, i.e. by 1 December 2000. No affirmation was filed on behalf of the Respondent on that day, but a summons was taken out which was filed on 4 December for an extension of time for service of the said affirmation.

3. On 7 December 2000, Chu J gave another order that unless by 4:00 pm on 15 December 2000, the Respondent do file and serve its affirmation in opposition to the application, the Respondent be barred from adducing any evidence in this application.

4. It seems to be accepted by Mr Tsoi for the Respondent today that the document which was filed on behalf of the Respondent was not a proper affirmation in so far as it had not been sworn at all. Accordingly, it would have been clear to the Respondent by 15 December 2000 that it had not complied with Chu J's order of 7 December.

5. However, nothing was done by the Respondent from that date (being 15 December 2000) until 7 February 2001, nearly two months later when even now the Respondent is only asking for an adjournment of the hearing today so that it might apply for an extension of time to comply with Chu J's order of 7 December. No good reason has been given for the substantial delay, save that in Mr Sadiq's affirmation filed in support of the summons, it is said that the Respondent's representative, Mr Verporten, is "very busy for the time being".

6. In my view, no grounds or no sufficient grounds exist for the court to exercise its discretion to adjourn the hearing today and accordingly I direct that the hearing today continue.

(Arguments)

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7. This is an application to set aside a Statutory Demand. The Statutory Demand had been made by a company called Way Press International against Chun Kam Chiu (I will refer to him as "Chun").

8. The Statutory Demand is in the following terms:

"Demand
To Mr Chun Kam Chiu
__________________________________

Address
c/o Keen Lloyd Holdings Limited
35th floor, Office Tower Convention Plaza,
1 Harbour Road, Hong Kong.
__________________________________

... ...

The Creditor claims that you owe the following debt and that it is payable immediately and, to the extent of the sum demanded, is unsecured -

When Incurred	Description of debt	Amount due as at the date of this demand
(1)	(2)	(3)
July 1999	Corporate Video	US$521,727.00
	Amount of Debt:	US$521,727.00"

9. Accompanying a letter of demand from the Respondent's solicitors on 19 September 2000 was an invoice from the Respondent dated 11 September 1999. The invoice was for the following items:

"Production of Keen Lloyd Corporate Video as detailed in Annex	US$161,727.00
Commission for on-site intervention in Ivory Coast for the Petroci Contract as agreed 1% on US$18,000,000.00	US$360,000.00
TOTAL	US$521,727.00"
	===========

That is the exact figure as appears in the Statutory Demand.

10. It would be seen that according to the invoice issued by the Respondent itself, this was an invoice sent and addressed only to Keen Lloyd (Holdings) Limited and not to Mr Chun who is apparently a director of the company.

11. There is nothing in the invoice, nor is there anything in the documentary evidence before me, to show that Mr Chun has assumed personal liability for that invoice, even assuming that Keen Lloyd may be liable to the Respondent on that invoice.

12. In any event, it is clear that there is a discrepancy between the Statutory Demand and the invoice on which it appears to have been based, in that according to the Statutory Demand, the consideration for US$521,727.00 was a corporate video, whereas the invoice shows that that amount was the fee charged for two items, the corporate video being the lesser item.

13. As I had indicated previously, on 7 December Chu J gave an extension of time to the Respondent to file an affirmation in opposition to Mr Chun's affirmation which says that in his personal capacity, he had not engaged the Respondent to produce any corporate video as alleged in the said Statutory Demand. There has been no affirmation filed in opposition to Mr Chun's said affirmation.

14. Clearly therefore on the evidence now available before me, the debt has been disputed on substantial grounds. Accordingly, I would grant an order setting aside the Statutory Demand.