XCHRX INVESTMENT AUSTASIA LTD. v. WAH NAM GROUP LTD.

HCA 15615/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 15615 OF 1999

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REASONS FOR DECISION

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1. These are two summonses in which the Plaintiff in HCA 15615/99 & the Plaintiff in 15616/99 seek to strike out the Defendant's summonses to stay proceedings under O. 12 r. 8 of the Rules of High Court on the ground of forum non conveniens as the Australia Court is the more appropriate forum.

2. The ground of the two Plaintiffs' application is that the Defendant in those two actions had not filed any affidavit in support of its application pursuant to Registrar Chu's order.

The full factual context of the Defendant's breach is as follows:

(i) writs with Statement of Claim in H.C.A. 15615 and 15616 issued on 30.9.99;

(ii) Defendant file acknowledgement of service on 12.10.99;

(iii) On 1.11.99 the Defendant obtained from Master Lok 14 days extension of time to file its Defences but failed to do so;

(iv) Defendant applied for another extension of time on 16.11.99;

(v) On 19.11.99, Master Kwan made an order that unless the Defendant was to file and serve its Defence by 17.12.99 the Plaintiff be at liberty to enter judgment;

(vi) On 14.12.99, Defendant took out O. 12 r. 8 Summonses to be heard on 21.12.99;

(vii) On 17.12.99

(a) Defendant filed Notice of Appeal against unless order;

(b) Defendant arranged a sudden urgent appearance before Registrar Chu and obtained orders, inter alia,

(1) to stay the unless order pending determination of O. 12 r. 8 Summonses;

(2) to adjourn the hearing of O. 12 r. 8 Summonses (scheduled on 21.12.99) to be heard before a judge together with the appeal;

(3) Defendant to file the supporting affirmation within 3 days;

(viii) Defendant failed to file the supporting affirmation within the 3 days as ordered or at all;

(ix) Plaintiff put on record the Defendant's breach on 30.12.99 and 7.1.99 and Defendant failed to give any response;

(x) The Plaintiff's present Summons and affirmation were filed on 18.1.2000;

(xi) Up to date no response from Defendant at all.

3. The mandatory requirement under O. 12 r. 8 is that the application must be supported by affidavit verifying the facts on which the application is based and a copy of the affidavit must be served with the summons.

4. The Defendant on 17 December 1999 on its own application before Registrar Chu must have known that it had to file supporting affidavit within 3 days. No supporting affidavit had been filed within 3 days as ordered.

5. On 30 December 1999 the Plaintiffs through their solicitors wrote to the Defendant's solicitors to put on record that they had not received any further affirmation apart from the Affirmation of Ting Koon Hung to support the hearing for stay of the unless order. There was no response from the Defendant's solicitors.

6. On 7 January 2000 the Plaintiff's solicitors wrote again to say that the time for filing affidavit in support had long expired. Again there was no response from the Defendant's solicitors.

7. The Defendant had not filed any affidavit in support at the hearing of these two summonses.

8. No application under O. 3 r. 5 was made to extend time to file the affidavit.

9. It was only in the Defendant's skeleton submission that Mr Chain of counsel submitted "the point is to say the least technical to the extreme, it is plain that the Defendant relies on Ting Koon Hung's affirmation filed on 17 December 1999".

10. With respect I do not agree. Ting Koon Hung's affirmation was in support of the application to stay the unless order. The Registrar had read the affirmation before she gave the order. She must be of the view that that affirmation cannot support the O. 12 r. 8 application. Alternatively, the Defendant did not intend to use that affirmation to support this O. 12 r. 8 application otherwise its solicitors would have applied to the Registrar for such order. In the further alternative the Defendant's solicitors could have made known to the Plaintiff's solicitors of such intention and applied for such order when they were notified of their non-compliance with Registrar Chu's order.

11. It is obvious that the Defendant had not complied with the Registrar's order nor was there any explanation for its non-compliance.

12. I have to consider whether I should exercise my discretion to allow the Defendant to proceed with the O. 12 r. 8 application notwithstanding its non-compliance with the order.

13. In Yeung Fu Lin & Anor v. Wong Kam Hung & Anor [1997] 3 HKC 809 at p. 811 per Findlay J, "... in order to achieve an exercise of the court's discretion to condone the late filing of the application to set aside, the first Defendant must give an explanation for his tardiness" Findlay J went on to say, "This absence of an explanation, acceptable or otherwise, gives me no basis on which I should exercise my discretion in favour of the first Defendant."

14. There is no doubt that there was no explanation at all. But then will the dismissal of the O. 12 r. 8 summons cause injustice to the Defendant? I do not think so. It does not mean that the Defendant will be deprived of the right to have issues to be tried. The Defendant has continued right of access to the courts in Hong Kong. Considerable time and costs had been incurred. Further there has been considerable delay be the Defendant asking for time. No prejudice nor injustice could have been caused to the Defendant.

15. For reasons above I will not exercise my discretion in favour of the Defendant and there be order in terms of the Plaintiffs' summons.