CHOW MEI HAN v. FUNG KAN KI

HCA 2251/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2251 OF 2000

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R U L I N G

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1. On 25 April 2001 I made an order dismissing the Defendant's Summons for a further extension of 14 days to file and serve his witness statements and allowing the Plaintiff's Summons that the defence of the Defendant be struck out and his counter-claim dismissed and that the Plaintiff be at liberty to enter judgment.

2. At the time of making that order, the action had already on 28 March 2001been set down for trial.

3. In making the order, I gave my reasons for doing so.

4. The Defendant had failed to comply with 3 previous orders to exchange witness statements.

5. The first order had been made by Master Barnes on 6 September 2000. Witness statements were required to be served within 42 days.

6. The second order was made by Yeung J on 14 February 2001 when he extended the time for serving witness statements for 21 days from the date of his order.

7. The third order was made by me on 3 April 2001 after the action had been set down for trial. The Plaintiff had taken out a Summons seeking an order that unless the witness statements be filed within 7 days, the defence be struck out and the counter-claim be dismissed. On that day (3 April 2001), I was informed by Mr Andy Tang of Messrs K M Lai & Li acting for the Defendant that the Defendant consented to an "unless order" provided that the period was 14 days. I accordingly made a 14 days' "unless order". The Defendant still did not comply.

8. On 18 April 2001, after the time for compliance with my "unless order" had expired, Messrs Yu & Associates filed a notice to act as the Defendant's solicitors, replacing Messrs K M Lai & Li.

9. Mr Yu of that firm appeared before me on 25 April 2001. No affirmation had been filed explaining why the Defendant had failed to comply with the previous order against him. Mr Yu informed me that the Defendant had said that he was instructing Mr Yu's firm because he was dissatisfied with his previous solicitors, but that in itself did not provide any excuse for failure to comply with 3 previous orders of the court. Mr Yu also explained that although a draft statement had been taken from the Defendant, his firm's staff had been unable to contact the Defendant to obtain his signature. I accordingly made the order to which I have referred.

10. On 26 April 2001, the day after I made that order, the Defendant filed a notice to act in person in place of Messrs Yu & Associates.

11. No appeal was lodged against my order of 25 April 2001.

12. Instead this Summons was taken out by Messrs Ellen Au & Co. on behalf of the Defendant on 24 August 2001 (after judgment had been entered against the Defendant and over 4 months after my order). Somewhat curiously, it was taken out under O.2 r.2 (i.e. an application to set aside for irregularity) and under O.13 r.9 (i.e. to set aside the judgment in default of notice and intention to defend). It sought leave to file and serve a defence and counterclaim within 21 days. In fact, a defence and counterclaim had been filed as long as 6 April 2000. Mr Li who appears for the Defendant before me concedes that the application as it was worded was misconceived and that it should have been made under O.3 r.5 and O.19 r.9. The application should have been for leave to set aside the judgment and for leave to file witness statements out of time.

13. There are two affirmations in support. They are vague and unspecific. They alleged that the Defendant's previous solicitor rendered him unsatisfactory legal advice. The Defendant appears to be suggesting that he had not had fully explained to him the consequences of not filing the witness statements, and that he could not find an alternative solicitor whom he trusted. He also said that the financial down-turn had caused him constantly to be away from Hong Kong on business, and that he was scared and did not understand what the proceedings were about. He also said that because he believed his home and livelihood are likely to be taken away, he "tended to escape all these frightful matters".

14. In my view, the appropriate course, would have been for the Defendant to seek to appeal against my order of 25 April 2001. He did not do so. I do, however, accept that the case of The owners of Cargo lately laden on board the ship "Bayville" v Mercury Shipping Co. Ltd. [1984] HKLR 143 is authority for the proposition that the Defendant who has failed to comply with an "unless order" and has had judgment entered against him, can apply to set aside the judgment. In that case unlike this there had not been an unsuccessful application for an extension of time after failure to comply with an "unless order". However, I will proceed on the basis that I do have jurisdiction to make such an order if appropriate.

15. The Defendant has waited over 4 months after my order of 25 April before taking any further steps. No explanation whatsoever has been offered for this delay. That, in itself, is a ground for refusing this application. In the vague affirmations that he has filed, there is no allegation that his solicitors did not inform him of the time limits specified by the court, but simply that they did not explain fully the consequences of non-compliance. That does not in my view provide a justification for failure to comply with 3 orders of the court. It is not an acceptable excuse for not complying with an order of the court, that the Defendant was so afraid of the consequences of the action, that he, in his own words, "tended to escape all these frightful matters".

16. The other matters raised in his affirmation did not, in my view, justify the setting aside of the judgment against him. He himself in his affirmation of 17 August characterised his behaviour as "irresponsible".

17. I accordingly dismiss the Defendant's application.