XCHRX HUNDRED HEALTH LIMITED v. KWAN PO YEE

No. A1764 of 1997

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

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J U D G M E N T

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1. On 15th September 1997 the Defendant's solicitors took out a summons returnable on 16th September 1997 for an order to serve the defence and counterclaim to this action within 21 days from the date of the order. The master hearing this application gave an order in terms of that summons. On 19th September 1997 the Plaintiff appealed the master's order. The Defendant filed the defence and counterclaim on the 18th September 1997.

2. The Plaintiff meanwhile took out a summons for leave to re-amend its Statement of Claim.

3. At the hearing the Defendant had no objection to the Plaintiff's amendment so I gave leave to re-amend the Statement of Claim and ordered that the costs of the re-amendment be to the Defendant.

4. Since the defence and counterclaim was filed the day before the hearing of this appeal so I dismissed the appeal and ordered the costs of the appeal be to the Plaintiff. At the hearing of the summons the Defendant did not file an affidavit to state the reasons why 21 days was required. There was nothing in record to show at the hearing before the master there was any explanation as to why the extension of 21 days was justified.

5. Counsel for the Defendant submitted that an affidavit to support the application was not necessary. With respect I do not agree. The master need to know the reason why 21 days was required before he can grant the order. In the absence of such information the Plaintiff is justified in taking out the appeal and is therefore entitled to costs of the appeal as counsel must have been instructed before the defence and counterclaim is filed.