XCHRX THE CHINA STATE BANK LTD. v. WONG CHUN YING t/a WING FUNG HONG CO.

HCA10825/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.10825 OF 1999

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J U D G M E N T

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1. This is the hearing of an appeal by the defendant from a refusal by the master to set aside a default judgment

2. The hearing before the master took place on 31 March, and the next day, my understanding is that the defendant applied for legal aid. By a Memorandum of Notification of Application to Legal Aid dated 3 April 2000, the court was notified that the defendant had applied for legal aid. It follows, therefore, that the normal procedure would be that the automatic stay of 42 days will apply.

3. The question before me today is whether I should lift the stay of proceedings. In coming to the decision of whether I should exercise my discretion to lift the stay of proceedings, I take into account, in particular, two matters : firstly, as to whether there might be some merits to the defence to the action by the defendant; and secondly, whether there is any reason or justification for the late application for legal aid.

4. Having heard arguments from both sides, I am satisfied that there are reasonable grounds for the defendant to justify both the late application as well as the defence to the action. On the merit of the case, there is possible ground to argue that the plaintiff is not a holder in due course, and I certainly accept that there is a reasonable ground put before the court as to why there was not an earlier application for legal aid.

5. In the circumstances, I decline to exercise my discretion to lift the statutory stay of proceedings. It follows, therefore, that the hearing of today's appeal must be adjourned to a new date and the costs of today's hearing would be costs in the appeal.