NOMADIC COLLECTIONS LTD AND OTHERS v. CHINA DISTRIBUTION CONTAINER LINES AND OTHERS

HCAJ188/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO.188 OF 2004

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J U D G M E N T

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1. I have before me a straightforward application for extension of time to file the Points of Claim.  The writ was issued, I believe, in October 2004.  It was served in December 2004.  There was acknowledgment soon after and then there was apparently an attempt to reach settlement on this relatively small claim. 

2. The attempt to serve the Points of Claim was however delayed because of the negotiations for settlement.  In April, negotiations failed and a summons to file the Points of Claim out of time was issued.  Ordinarily one would expect the defendants in that situation to consent to the late filing of the Points of Claim but, there was first no response and then by a letter/fax dated 9 May 2005, the defendants’ solicitors informed the plaintiffs’ solicitors that the summons for late filing is going to be opposed.

3. A variety of reasons are given by Mr Wong today as to why the court should refuse to grant the application.  I must say that none of the reasons given are meritorious.  This is not a case where there had been inordinate or inexcusable delay, so as to have caused prejudice to the defendants.  The defendants have not taken out any application to strike out the action on the basis of inordinate delay causing prejudice. 

4. The defendants simply say “we are not going to consent” and has advanced various reasons — none of which I find convincing.  In my view, the defendants’ solicitors should have consented a long time ago and thus today’s hearing would have been avoided.  I believe the solicitors for the defendants have adopted a very unreasonable attitude in this matter.  This is straightforward.  This ought to have been regularly the subject matter of consent, but the defendants’ solicitors have chosen the most expensive and most obstructive way to go about this. 

5. I therefore make an order in terms of paragraph 1 of the summons.  So far as the costs is concerned, in my view, the defendants is not entitled to the costs of the application.  The order I will make therefore is that there is no order as to costs.  I must say I am tempted to make an order against the defendants but, in the circumstances, it seems to me my disapproval of the defendants’ unreasonable resistance is fairly reflected in my order of no order as to costs.