IAN LESLIE WILKINSON v. ENSEMBLE DEVELOPMENT LTD.

1996, No.MP1493

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

Miscellaneous Proceedings

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J U D G M E N T

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1. This is an appeal against an order made by Master O'Donnell on 14th August 1996. This arises in the matter of a Charging Order absolute dated 18th December 1996 in the District Court Divorce Jurisdiction, and an application for an order for sale pursuant to O.88, r.5(a) of the Rules of the Supreme Court.

2. On 19th July 1996, leave was granted to the representative of the defendant to file an affidavit and 21 days was given to the plaintiff to file an affidavit in reply, and 14 days thereafter for the defendant to file an affidavit in response. On 25th July 1996, solicitors for the respondent herein issued a written request pursuant an O.24, r.10 of the Rules of the Supreme Court for documents specifically referred to and relied upon in the affidavit of the appellant filed on 19th July 1996. A further written request was made on 31st July 1996 for those documents and on 7th August 1996, a summons was issued by the respondent herein for the production of the said documents.

3. Since the time for the filing of the affidavit in reply to that filed by the appellant herein on 19th July 1996 had all but passed, that summons included an application for an extension of time for the period from the receipt of the documents requested by the summons, for the filing of the respondent's affidavit. On 9th August 1996, by a letter dated 8th August 1996, some of the documents requested were received by the respondent by mail contained in a letter dated 8th August 1996. At this stage, matters were complicated by the fact that the appellant herein was represented at that time by a firm of solicitors, Ng & Co. They were the solicitors of record and, quite properly, the respondents directed their requests and enquiries to that firm of solicitors, copied to the appellant company.

4. It thus appears, from what I am told in Court, that the solicitors of record were not in fact in practical terms, acting for the company, and the company was represented by its representative Ms Wilkinson who appears in Court. I accept from Mr Powner for the respondent that at the time when the documents were received, since they could obtain no response from Ng & Co. for the appellant, it was not possible for a consent summons to be filed, and also given that no leave have been granted pursuant to O.6, r.5 of the Rules of the Supreme Court for the company to be represented other than by a solicitor, no consent summons could have been obtained from the appellant. That left the situation as one where the summons had to go ahead on 14th August 1996.

5. There is considerable dispute between the parties as to what occurred at that hearing. I am told by Mr Powner that the respondent elected not to proceed with paragraph 1 of the summons for the provision of documents, but proceeded on paragraph 2 for an extension of time and for costs in paragraph 3.

6. Ms Wilkinson representing the appellant said that the order sought for the supply of documents was refused by the Master and not withdrawn, and that the application for extension of time must thereby fail because it was only included in the summons for the purpose of obtaining time to peruse the documents sought. She argues, therefore, that both paragraph 1 and paragraph 2 of the summons having failed, the order for costs is not properly made.

7. I am bound by the order which has been made by Master O'Donnell. That is the order which is appealed and that is the order which I must consider. It matters not whether the order in paragraph 1 of the summons was refused or withdrawn, it makes no difference as far as this appeal is concerned.

8. As far as paragraph 2 is concerned, the thrust of the application, given the delay in the production of documents from 19th July 1996 when the affidavit was filed by the appellant; the request on 25th July 1996 for the documents under O.24, r.10; and their supply by a letter dated 8th August 1996 on 9th August 1996; and the inability to consent to a summons by the appellant on 9th August 1996 made it necessary that some extension of time be given by the Master for the filing of the respondent's affidavit in reply to that of the appellant of 19th July 1996.

9. From the form of the order which is approved and sealed, it is quite clear that the Master did not make the order for the extension of time conditional upon the supply of documents, but made it to run from 14th August 1996. In the circumstances, that was the appropriate order. He amended the order as to costs to read costs in respect of the application before him on 14th August 1996 and not to include costs consequential to that order. Given the delay which had occurred in the production of some of the documents by 9th August 1996, the extension of time was appropriate and an order for costs and the terms granted by the Master was also appropriate. I am referred to the case of Holdal v. C.C.F. Construction Limited [1992] 2 All E.R. 550 where Morland, J.

said :

"Generally speaking, in my judgment, judges in Chambers should not allow appeals against costs orders by Masters unless it can be shown that the order made was unreasonable, or erred in law, or as I have indicated, either failed to take into account proper matters, or took into account matters which should not have been taken into account."

I adopt what the learned judge had said. I cannot see that the order was unreasonable in the circumstances of the necessity for an extension of time nor did it err in law. All the matters which the Master ought to have taken into account, he did so. The appeal against the Master's order is dismissed.

(T.M. Gall)

Judge of the High Court