SADHWANIS (JAPAN) LIMITED v. SADHWANIS (HONG KONG) LIMITED

1982, No. 6088

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. This is an appeal by the defendant against an order made by Master Perrior on the 29th May 1986 whereby he ordered discovery by the defendant within 28 days of certain documents, failing which the plaintiff was entitled to strike out the amended defence and to enter judgment. The summons before Master Perrior arose as a result of an order made by Master Suttill on the 31st October 1985 which was amended by Master Jones on the 6th December 1985 which the plaintiff contends has not been complied with by the defendant. The order made by Master Suttill as amended provides, inter alia, for the defendant to make discovery within 28 days of certain accounts and bank statements. The defendant contended that this order only related to the discovery of certified accounts and as they had none in their possession argued that the order had been complied with.

2. However, the plaintiff was of the opinion that the order was not restricted and related to all accounts whether certified or not. The lack of consensus led to the summons before Master Perrior when he made an order that the defendant make discovery within 28 days of any accounts between the defendant or the plaintiff and its or their related companies, expressly or impliedly referred to in the amended order of Master Suttill dated the 6th December 1985 and in default the defendant would be debarred from defending.

3. Mr. Faulkner who appeared for the defendant submitted that an unless order was inappropriate. He also submitted that Master Perrior was not entitled to expand or widen the order made by Master Suttill, but I accept the submission made by Mr. Eddis for the plaintiff that he was entitled to make such order as he thought fit pursuant to the provisions of Order 24, rule 16(1) of the Rules of the Supreme Court.

4. It is readily apparent from the documents that have been placed before me that the defendant realised that discovery of their accounts whether or not certified was required. By way of illustration some accounts referred to in their list of documents are not certified.

5. It is not in dispute that the defendant has not complied with paragraphs 6 and 7 of the order of Master Suttill as amended, although Mr. Faulkner made a submission that compliance depended upon compliance with paragraphs 2, 3 and 4 of that order. However, I do not accept this submission.

6. It is abundantly clear that there has been inordinate delay on the part of the defendant with regard to the matter of discovery since the plaintiff made its initial request in April 1985. In my opinion the order sought by the plaintiff and made by Master Perrior was wholly justified. Indeed, it is pertinent to observe that the plaintiff's solicitors wrote to the defendant's solicitors on the 3rd April 1986 in which they clearly set out their position in the fourth paragraph which reads:

"

Without in anyway accepting your rather strained interpretation of the order, are your clients prepared to discover all the statements of accounts in their possession pertaining to this action whether they be "certified" or not. "

I am told that until to-day, no reply has been received by the plaintiff's solicitors to this letter.

7. In my judgment this appeal must be dismissed with costs. Nevertheless, in order to ensure that justice is done, and having regard to the judgment of Russell, L.J. in the case of Husband's of Marchwood Ltd. v. Drummond Walker Developments Ltd. [1975] 2 All E.R. 30 which was cited to me by Mr. Eddis, I shall extend the period of compliance with the order made by Master Perrior by a period of seven days from the date of the expiry of that order.

8. As the words "or impliedly" in the second paragraph line 5 of the order are unclear they will be deleted.