SZETO KWOK HUNG ROQUE v. SZETO KWOK KWONG BERNARD AND OTHERS

HCMP 2596/2017

[2018] HKCFI 2241

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2596 OF 2017

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DECISION

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The application

1.  This is the hearing of a summons dated 31 July 2018 (“Summons”) taken out by the defendants.  The defendants seek thereby, under Order 42, rule 2 and the court’s inherent jurisdiction, an unless order for the plaintiff to file his Statement of Claim.

The background

2.  For background of the case, I refer to my Decision of 18 April 2018.  On that day, I ordered, with some amendments, the continuation of an ex parte Injunction Order which the plaintiff had earlier obtained against the defendants (“Injunction Order”).  I further ordered, amongst other things, that the action do continue as if commenced by Writ, and granted the plaintiff consequential leave to file and serve a Statement of Claim within 28 days from the date of the Order.  The Order (“Order”) was dated 18 April 2018, and was sealed on 18 May 2018.

Plaintiff’s failure till date to file his Statement of Claim

3.  On 10 May 2018, Messrs Bernard Wong & Co, solicitors actingfor the defendants (“BW & Co”) issued to the plaintiff two letters.  One wasissued to the address the plaintiff stated in the Originating Summons he tookout (“OS Address”).  The other one was issued to another address which theplaintiff had stated to be his in some correspondence (“the Other Address”).  The two letters were otherwise in the same terms.  The plaintiff was reminded to file his Statement of Claim by 16 May 2018 (ie 28 days from the Order).

4.  On 15 May 2018, the plaintiff wrote to BW & Co and said that the Order had not been delivered to him.  He sought an extension of 28 days “from the day the Court order is delivered”.  In that letter, the plaintiff stated his address to be the OS Address.

5.  On 17 May 2018, BW & Co replied and agreed to the extension sought.  It was also said that “please take notice that no further extension will be agreed to by our clients”.  The reply was addressed to the OS Address.

6.  By letter dated 21 May 2018 addressed and delivered by hand to the OS Address, a copy of the sealed Order was served upon the plaintiff.  28 days from that date of service fell on 18 June 2018.

7.  On 17 June 2018, the plaintiff wrote to BW & Co and sought another extension of 30 days.  In this letter, the plaintiff stated his address to be the Other Address.

8.  By letter dated 20 June 2018 and addressed to the Other Address, BW & Co acceded to the request.  Therein, the fact that that was the plaintiff’s second request for extension was noted.  It was further said that “… as you are acting in person, our clients will not object to your request…”

9.  By two letters both dated 16 July 2018, one issued to the OS Address and the other to the Other Address, BW & Co wrote to the plaintiff and reminded him that the extended deadline for him to file his Statement of Claim fell on 18 July 2018.  No reply has been received from the plaintiff.  Nor has any Statement of Claim been filed.

10.  On 23 July 2018, BW & Co again wrote to the plaintiff at the OS and Other Addresses.  The failure on the plaintiff’s part to file his Statement of Claim was pointed out.  It was further said that “… unless you do file and serve on us the Statement of Claim on or before Thursday the 26^th day of July 2018, we shall apply to Court to dismiss the above action without further warning.”

11.  Still, no Statement of Claim was filed.  On 31 July 2018, the defendants took out the present Summons.  The defendants seek an order that unless the plaintiff files his Statement of Claim within the specified time, the Originating Summons herein be struck out, and the Injunction Order be discharged.

12.  I have read the affirmation of service of Lau Wai Ming.  I am satisfied that the Summons and all supporting evidence have been validly served upon the plaintiff on both the OS and the Other Addresses.

Discussion

13.  The plaintiff has failed to file his Statement of Claim despite two voluntary extensions, and despite repeated reminders by the defendants.  The latest reminder was simply ignored. More than six further weeks have lapsed since the Summons was taken out.  No step has been taken by the plaintiff in the meantime to try to file his Statement of Claim.  No explanation has been tendered by him.  Given the fact that the parties’ dispute concerns the welfare of their aged mother, it is in the interest of all parties involved that the plaintiff should pursue the action as expeditiously as possible. 

14.  It is also important to bear in mind the existence of the Injunction Order.  It was first obtained by the plaintiff on an ex parte basis.  A party who has been awarded an interlocutory injunction ought to prosecutethe underlying proceedings expeditiously and diligently.  Rather than doing that, the plaintiff has despite the lapse of five months from the Order failed to file his Statement of Claim. 

15.  In the circumstances, I am of the view that the facts justify the exercise by this Court of its discretion to grant the unless order sought. 

Disposal

16.  I grant the order sought, with some amendments proposed by me. 

17.  I have heard Mr Remedios on costs.  Despite his application for summary assessment, I am concerned that the Statement of Costs has not been served upon the plaintiff.  In the circumstances, I order that the costs of this application be to the defendants, to be taxed if not agreed.