XCHRX AU KAM YU v. CHUNG SEN AUCTIONEERS LTD.

HCA 1371/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. A1371 OF 1998

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D E C I S I O N

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1. This is an application by the Defendant to remove the action from the Warned List. The Defendant's present solicitors filed a Notice of Change of Solicitors on 10th November 1999. This application was taken out on the same day.

2. All along Messrs. Lau Kwong & Hung have been acting for the Defendant in these proceedings until the Notice of Change of Solicitors filed recently. It is said that the Defendant is not ready for trial. It is said that the present solicitors have not received all the documents from the former solicitors. However, no satisfactory explanation has been put forward as to why that is the case. Today is 19th November and nothing is put forward before me to show why there has been a delay in handing the documents over to the present solicitors.

3. It is also said that the Defendant wishes to call experts and no expert reports have been obtained. This is in marked contrast to the position at the Check List hearing before Chung J. on 7th July 1999. At that time, the solicitors for the Defendant confirmed that the case was ready for trial. In the Check List of the Defendant signed by the solicitors for the Defendant dated 5th July 1999, it was confirmed that all steps that ought to be taken to prepare the action for trial had been duly taken and completed. It was also confirmed that the Defendant would not be calling any expert witnesses. In the circumstances, I do not see that a valid reason has been put forward for calling experts at this stage on behalf of the Defendant. No satisfactory explanation has been put forward before me on that score.

4. It is also said that a witness, Mr. Tsang, formerly of the Defendant, needs to be subpoenaed as he has left the employment of the Defendant and set up in competition with the Defendant. But the solicitor for the Defendant is unable to tell me when Mr. Tsang left the Defendant. He is also unable to explain to me why no subpoena has been served if his firm was instructed to act for the Defendant at least since 10th November 1999. Up to today, no attempt has been made to serve a subpoena on Mr. Tsang.

5. In the circumstances, the factors put forward by the Defendant are not sufficient reasons for the exercise of my discretion to remove the case from the Warned List. Any further delay will cause prejudice to the Plaintiff because he will be delayed in the trial of this action. In the circumstances, the application is dismissed with costs to the Plaintiff.