XCHRX ROTORUA DEVELOPMENT CO. LTD. and Another v. REESON CRANE & ENGINEERING LTD. and Others

1997, CL No. 124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

____________________

J U D G M E N T

____________________

1. On 1 September 1997, by consent, it was ordered that unless the plaintiffs serve replies to a request for further particulars of the statement of claim on or before 29 August 1997 the claim against the second to fourth defendants (the defendants) be struck out. This order was a little odd in that the time for complying with the order had passed when the order was made. The plaintiffs had served some particulars on 3 July 1997 and served further replies on 29 August 1997. The defendants were not satisfied with these replies and, on 12 March 1998, asked that the plaintiffs' claim be struck out. On the same day, the plaintiffs asked for leave to amend their statement of claim.

2. I heard the application to amend first on the basis that, if the allegations were substantially the same and the particulars ordered were still relevant, the order would continue to apply. On this basis, Miss Landon did not object to the amendments, and I allowed them, with costs to the defendants. Following this, I indicated to the parties that I would be reluctant to strike out the claim without giving the plaintiffs one more opportunity to put their house in order. The parties were then able to reach agreement on the particulars to be supplied. I now have before me a draft consent order in terms of which, unless the plaintiffs do serve the particulars by 23 April 1998, the plaintiffs' claim against the defendants be struck out. Mr Yau concedes that the plaintiffs must pay the costs of the application, but Miss Landon urges that I order that the scale be on an indemnity basis.

3. The particulars that the plaintiffs have agreed to supply are clearly such that the defendants are entitled to receive them. This should have been obvious to the plaintiffs from the outset, but they have failed to supply them. The order of 1 September 1997 was only to serve replies to the request, but these replies are plainly inadequate, as the plaintiffs now concede. They are fortunate not to have the claim struck out. There is no excuse for failing to supply the particulars requested. The defendants have been put to quite unnecessary expense in pursuing this matter. It would be unjust if the defendants were not fully reimbursed for the costs that they have been obliged to incur.

4. The plaintiffs are ordered to pay the costs of the second to fourth defendants of the application in any event on an indemnity basis.