LAI YUET CHUN v. SUPER DELUXE INTERNATIONAL LTD. AND OTHERS

HCCW 186/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP NO. 186 OF 2001

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D E C I S I O N

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1. This is an application on the part of the Petitioner for an order that she be at liberty to enter judgment against the 2nd to 4th Respondents for the costs of the petition (and various other costs of interlocutory applications) on the ground that the 2nd to 4th Respondents had failed to comply with an order made on 5 March 2002 for filing and serving their affirmation in opposition. There was filed on the same day a summons issued by the 2nd to 4th Respondents for an order that they be granted leave to file and serve their affirmation in opposition within 3 days from the date of the order to be made herein.

2. The matter started off as a contested petition, but by an order made on 5 March 2002 by consent, the only issue left between the parties was one of costs. On 5 March 2002, I made an order giving the parties various directions as to the filing of affidavits relating to this issue of costs. The Respondents were given 14 days after service of the Petitioner's affirmation to file an affirmation in opposition.

3. The Petitioner filed her affirmation on 23 March 2002, and the time frame of 14 days meant that the Respondents were to file their affirmation in opposition by 6 April 2002. The Respondents were not able to do so and after requesting an extension of time from the Petitioner, the Petitioner gave an extension of time to 22 April 2002.

4. However, by 22 April 2002, the Respondents were still unable to file and serve their affirmation in opposition. Consequently, on that day, the Petitioner filed the summons that I have referred to earlier; and the 2nd to 4th Respondents also filed their time summons.

5. The matter has come before me today on a 9:30 a.m. matter, attended on the one part by a solicitor and on the other part, by counsel for the 2nd to 4th Respondents. It seems to me that a great deal of time and costs have been wasted by both parties to deal with something like this. It seems to me that when the Respondents were unable to file their affirmation in opposition on 22 April 2002, what they ought to have done was to have provided the other side with a suitable explanation of their inability to do so and to put forward a reasonable date for the filing of that affirmation, to allay any fears on the part of the Petitioner that they were simply trying to delay this matter.

6. In any event, even if the Petitioner would not have obtained the order that she sought on the summons (given that no previous "unless order" had been obtained pursuant to Practice Directions 16.5), the Respondents ought to have been aware that the likely order that would be made by the Court on the hearing of the summons would have been an "unless order", given the substantial delay and the lack of any explanation of the delay from the Respondents. Consequently, what they ought to have done was to have offered an "unless order", preferably coupled with an affidavit explaining the reasons for the delay. The Respondents have not done so.

7. Consequently, the order that I would make today is an order that unless by 4 p.m. on 21 May 2002, the 2nd to 4th Respondents file and serve their affirmation in opposition to the 6th affirmation of Lai Yuet Chun dated 23 March 2002, they would not be permitted to adduce any evidence in opposition to the said affirmation. The reason why I have put the date at 21 May is because 18 May is a half day being Saturday and 20 May is a public holiday.

8. As far as the costs of the two summonses are concerned, subject to any submissions that I may hear now, I would give the Petitioner the costs of the hearing today but not the costs of the taking out of the summons of 22 April 2002, and in relation to the time summons, I would give the costs to the Petitioner in any event.