HONG KONG PING JENG LAU CO LTD v. THE INCORPORATED OWNERS OF UNITED CENTRE

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 2971 OF 1989

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J U D G M E N T

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1. By the originating summons in these proceedings, the plaintiff seeks a declaration as to the true construction of certain provisions in a deed of mutual covenant dated 28th April 1981 relating to building known as United Centre, Queensway, Hong Kong.

2. The plaintiff is the owner of the 4th - 6th floors in United Centre. The question is whether plaintiff can use its property for certain commercial purposes for which the plaintiff wants to use it.

3. The plaintiff took the point up with the defendant in September 1989; but it failed to obtain any response. Accordingly, it says, it has found itself compelled to institute these proceedings. It issued the originating summon on the 4th November 1989. Unfortunately it did so in the wrong form, no doubt anxious to obtain as early as possible a hearing, an anxiety which I quite understand.

4. It took out an originating summons in the "expedited form" to be found as Form No. 10 in the Appendix to the Rules of the Supreme Court. That is a form appropriate for use only when "authorised or required" by the rules. (See Order 7, rule 2(1)). There are a number of provisions in the Rules which authorise or require the use of the expedited form. So that there shall be no doubt about it, I will state my opinion on the meaning of the words "authorised or required". In my judgment, the word "authorised" would apply to any rule which permits the use of the expedited form. The word "required" would apply to any rule which mandates the use of the expedited form.

5. In the present case there was, as it seems to me, clearly an irregularity; for no rule permits or mandates the use of the expedited form. And the irregularity is material because, when the expedited form is used, the time for the defendant to file evidence is cut down. That is the whole purpose of the expedited form. It is improper to use it in an ordinary case to defeat the rule which provides a time-table for the filing of evidence, allowing a more generous time to the defendant for that purpose than he would have where the expedited form is used: see 0.28 of the Rules of the Supreme Court, and, in particular, 0.28, r.l(a). Under rule 1(a), which applies to the ordinary case, the plaintiff has up to 14 days, after service has been acknowledged by the defendant, for the filing of his evidence; and the defendant has 28 days, after service on him of the plaintiff's affidavit evidence, to file his own affidavit evidence. The plaintiff's time for reply is 14 days thereafter. No other evidence is to be received without the leave of the court. It is of course always possible for the court to vary that time-table on application, so as to cut down the amount of time made available by the rule for the purpose of filing evidence; and that is the correct course open to a party who wishes to bring the matter on for hearing sooner than would otherwise be the case.

6. In the present case, then, the defendant was, on the face of it, deprived of the time provided by the rule for the filing of evidence, and this matter has come on before the court sooner than it would otherwise have done in absence of any application by the plaintiff to abridge the time.

7. What happened was that the originating summons was given a date for hearing, namely 24th November 1989, when it was issued. Since it was in the expedited form that was appropriate. On 24th November 1989, the originating summons accordingly came on before the court. Deputy Judge Sharwood, in Chambers, was asked, on behalf of the defendant, for further time in which to file evidence. Neither side drew the judge's attention to the fact that the proceedings were irregular. Before me it has been agreed that the defendant although of course aware of the fact that the summons was in the expedited form, was not aware of the irregularity. Of course the general rule is that, if you know all the relevant facts, you cannot rely on your ignorance of the legal position in order to escape the consequences of that knowledge. But 0.2, r.2(1), which is concerned with irregularity, seems to me to displace that general rule. It reads as follows :-

"2.(1)    An application to set aside for irregularity any proceedings, any step taken in any proceedings, or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity."

That is what the rule provides. It does not simply say that such an application will not be allowed unless it is made before the party applying has taken any fresh step in the proceedings, as it might have done. It expressly refers to the step being taken after the party taking it has become "aware of the irregularity". That, I think, must be a phrase which has some meaning or content. If, as the plaintiff submits, it means simply that you know the facts which give rise to the irregularity, it would seem to me to be deprived of any content at all, and so I reject the plaintiff's submission. I think the words must refer to the state of mind of the party applying; and as I have said it is accepted here that, when the application for time to put in evidence was made on behalf of the defendant to Deputy Judge Sharwood, the defendant was not "aware of the irregularity".

8. I therefore do have power to do what is just to cure the matter. I cannot wholly set aside the proceedings and indeed I am not invited to do so. But I can if necessary restore the defendant to the position in which it would have been in if it had had the time which would originally have been available for it to put in its evidence under the provisions of 0.28, r.l(a) to which I have referred.

9. The question therefore comes down to this : ought I, in my discretion, how to proceed with the hearing of this, case, the defendant not having put in any evidence and now anxious to have more time, or should I restore it to the position in with it would have been had the rules been followed? I have come to the conclusion that there is no good reason for further extending the defendant's time for filing evidence or for waiving the irregularity only on terms that its time for file evidence be extended to what it should originally have been. The reason I have come to this conclusion is that the point with which I am concerned is a pure point of construction of the provisions of the Deed of Mutual Covenant. There is no evidence which the defendant could put in which would be in any way material to the conclusion to which I have to come. I fully understand that the defendant has had difficulties in coming to a conclusion as to what attitude it ought to adopt towards the plaintiff's claim. But that is no good reason, as it seems to me, for delaying the question of construing the Deed of Mutual Covenant as I have been asked to do.

10. I have read with care the evidence now filed on behalf of the defendant in support of its application to set aside the originating summons, which sets out the difficulties the defendant's solicitors have had in obtaining instructions from those responsible for the conduct of the defendant's affairs and also sets out the reasons given by the defendant for wanting to take further time to consider the matter. But there is not a word in that evidence which suggests that anything the defendant could say in evidence would assist the court on the question which it has to decide. Certainly the defendant would have had more time, had the provisions of 0.28, r.1(a) been followed, for the purpose of taking legal advice as to parties, and other matters of that sort. But I see no good reason, having regard to the fact that the defendant was given extra time by the judge and has not been able to use it, for extending its time further. I propose therefore, after dealing with the costs of the present application, to go on and deal with the question of construction raised by the originating summons.