XCHRX Wong Kwai Cheung t/a Cheung Kee Transportation v. Harvest Union Development Ltd. t/a Ming Fat Engineering Co.

DCCJ9046/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 9046 OF 2001

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D E C I S I O N

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1. This afternoon I have an order 14 application before me but before the plaintiff opened his application, Mr Mak, counsel for the defendant, applied to me for leave to refer to three sets of documents and undertook to file an affidavit to exhibit these documents. He said the three sets of documents were self-explanatory in contents and he would confine himself to making certain observations or submissions in relation to these documents. He said these documents would, together with his other arguments and the evidence already filed in opposition to this application, show to the court that there are triable issues and therefore this application for summary judgment should fail.

2. This application was opposed by Mr Cheung, solicitor for the plaintiff. He told me that he was only shown the first time these documents shortly before the commencement of this hearing today. He said he was taken by surprise. He had no chance to take instructions on these documents and there was no reason for the delay in disclosing these documents on the part of the defendant.

3. I have listened to Mr Mak's argument carefully and considered the points he wanted to extract from these documents. In my judgment he may well be correct in saying that these documents are relevant to the present application and would tend to support the defendant's defence against the plaintiff's claim if, and this is an important proviso, they are allowed in unchallenged by the other side. By that I mean that certainly they are documents which call for some explanation, if there is any good one, from the plaintiff in order for the plaintiff to succeed in his application for summary judgment. So bearing in mind that in an order 14 application it is for a defendant to show an arguable defence, and the consequence of a successful order 14 application is that a defendant shall be shut out from the judgment seat without a trial, I am of the view that on the one hand the defendant should be allowed to refer to these documents and, indeed, any other related explanation by way of affidavit evidence in defence of this application for summary judgment, and on the other, the plaintiff should be given a proper opportunity to respond to these documents and any related evidence from the defendant's side if the plaintiff thinks that a good explanation can be provided.

4. So in short, I would allow the defendant to refer to these documents and, if necessary, to put in further affidavit evidence explaining these documents in opposition to the present application for summary judgment, on the condition that the plaintiff be given a proper opportunity to respond to these documents and any related evidence coming from the defendant's side.

5. So I order: leave to the defendant to rely on the documents submitted by Mr Mak to me this afternoon and, if necessary, to file further evidence relating to these documents on the condition that the plaintiff be given a proper opportunity to reply to them if it thinks fit so to do.