XCHRX CELANESE ESTATE LTD. v. KUNG KWOK WAI DAVID AND OTHERS

HCA6437/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 6437 OF 1997

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J U D G M E N T

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1. Mr MUI, on behalf of the plaintiff has conceded that the 1st defendant is entitled to judgment in the terms of paragraphs one to four of the Order 14 summons. I therefore make an order in terms of paragraphs one to four and order that the costs of the counterclaim, including the costs of the 1st defendant's application for summary judgment, be paid by the plaintiff to the 1st defendant, such costs to be taxed forthwith.

2. This morning, Mr MUI has sought to make an application on behalf of the plaintiff for judgment under Order 14. A copy of this application was handed to court this morning. A copy was sent to the 1st defendant's solicitors after 5 pm yesterday and reached counsel for the 1st defendant by fax at 6.50 pm last night.

3. Instructions had been given to a clerk of the plaintiff's solicitors to file it in court this morning. At the time of making the application to proceed, it was not clear whether it had even been filed. Enquiries have revealed that it has not been. It is therefore not necessary for me to dismiss it.

4. I would only add that to seek to proceed with such an application this morning was wholly misconceived. The plaintiff's contention is based on an argument that the correct basis for calculation of interest under the mortgage was simple interest rather than compound interest. This issue has never been expressly referred to in the pleadings. Furthermore, in breach of the rules, the proposed summons was not supported by any affidavit supporting the same which stated that in the deponent's belief there was no defence to the relevant claim or part of the claim.

5. And secondly, the proposed summons and affidavit in support were not served on the defendant at least 10 days before today.

6. As I have mentioned, if such a summons had been filed, I would have dismissed it.