STAR INDUSTRIAL CO LTD v. NEW OCEAN INDUSTRIAL (HK) CO LTD

HCA1178/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1178 OF 2007

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DECISION

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1. I have heard the parties.  I am minded to make an order in terms of the defendant's summons, and I note that the summons also specifically states that the costs of this application be to the plaintiff in any event. 

2. I make no order on the plaintiff’s summons save to order that the costs of the plaintiff’s summons and application before me this morning also be borne by the defendant. 

3. I have heard the submissions of Miss Tsang, who asserts that the defendants are guilty of delay, but one can see from a reckoning of the time that the defence is late by only one month.  That reckoning of time has to be contrasted with the fact that the plaintiff originally took out this action in 2007 and, apart from serving the writ, no statement of claim was served or other step was taken by the plaintiff until 24 December 2008, when a notice of intention to proceed was filed, and that was then followed by the filing and service of a statement of claim on 16 February 2009. 

4. The defendant, by its solicitors, filed an acknowledgement of service on 27 February 2009 indicating that it intended to contest the proceedings.  Of course, the defendant ought to have filed a defence within the time limit, which would have expired around the middle of March this year, but it did not do so, prompting, of course, the plaintiff to issue its summons for judgment, which the plaintiff very properly did, and for that reason I have awarded the costs of that application to the plaintiff in any event. 

5. However, although it was late, the defendant did put its house in order and issued its summons asking for leave to file and serve its defence today as per the draft defence annexed to the summons.  I have perused that draft defence, and it seems to me to raise matters of substance which ought to be tried. 

6. I also have regard to the affirmation of Mr Kei Chi Kin, who explained the reason for the delay, saying that he had entrusted the work of assisting the solicitors to prepare the defence to an individual by the name of Zhang Kangmai.  However, Mr Zhang failed to get on with it, and then he had to undertake the job himself. 

7. I accept that explanation, and for these reasons I have made the orders that I have made and the costs orders that I have made.