YINGGAO RESOURCES LTD AND OTHERS v. THE HONGKONG AND SHANGHAI BANKING CORPORATION LTD

HCA 128/2022

[2022] HKCFI 1704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 128 OF 2022

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D E C I S I O N

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1.  This is the Plaintiffs’ appeal against a Master’s decision giving extension of time for the Defendant to file and serve its defence.

2.  By way of background, the 1^st and 2^nd Plaintiffs in this action are the Plaintiffs in HCA 329/2015 and the Defendant here is the Defendant in that action as well. The Plaintiffs in HCA 329/2015 got leave to re-amend their statement of claim (“amendment order”). The Defendant appeals against that amendment order, which would be heard on 28 July 2022 (“the Defendant’s Appeal”).

3.  On 4 May 2022, upon the Defendant’s application in the present action, Master Kent Yee gave leave to the Defendant to file and serve its defence after determination of the Defendant’s Appeal. This is the Plaintiffs’ appeal against Master Kent Yee’s order.

4.  Today, the Plaintiffs appear by counsel. Their solicitors only came on record on 2 June 2022 (Thursday), just before the long weekend, and the Defendant’s solicitors were informed late in that afternoon.

5.  The Plaintiffs have not lodged any written submission. Ms Cheung, counsel for the Plaintiffs, informs the Court that she does not have instructions to substantively proceed with arguing the appeal and sought an adjournment of 21 days. I refuse because a prior application by letter to adjourn today’s hearing has been declined on 30 May 2022; and there is no complication at all in this appeal.

6.  Upon being notified that the adjournment is refused, Ms Cheung asks the Court to permit the Plaintiffs to address the Court as her instructing solicitors’ instructions are limited to today’s application. I refuse that application also. The Plaintiffs’ solicitors are on record. It is up to the Plaintiffs to give their solicitors the proper instructions to proceed with the appeal. The Defendant’s solicitors had, on 1 June already served a bundle of documents and skeleton submission on the Plaintiffs’ former solicitors, K H Mak & Co. I am informed by Mr Chan, solicitor for the Defendant, that he has offered to pass a spare bundle of documents to the Plaintiffs’ current lawyers this morning but that was not accepted. The Plaintiffs have not made the best out of the circumstances to pursue their application.

7.  I therefore dismiss the appeal.

8.  In any case, the appeal has no merits. As disclosed in the affirmation filed by the Plaintiffs before Master Kent Yee, the Plaintiffs considered that the reference notes in Form 14 (the acknowledgement of service), which set out the time limit for a defendant to file its defence within 28 days from expiry of the time for filing its acknowledgement of service, had the effect of an “unless order”. They suggested that the Defendant should seek relief from sanction within 14 days after non-compliance. The Plaintiffs were then legally represented by K H Mak & Co.

9.  The Plaintiffs were plainly mistaken in their interpretation of the reference notes in Form 14. There was in fact no order with an “unless” provision that specified the consequence of non-compliance. The Master had power to extend time for filing a defence pursuant to Order 3, rule 5 of the Rules of the High Court.

10.  Further, the statement of claim in the present case largely overlaps that in HCA 329/2015. If a defence is filed now, it may have to be substantially amended if the Defendant’s Appeal is successful. There will be not much prejudice to the Plaintiffs to defer the filing of the defence in the present action since the Defendant has been given time to file its amended defence in HCA 329/2015 to 28 days after determination of the Defendant’s Appeal.

11.  For the reasons given, I dismiss the appeal as being wholly unmeritorious.

12.  Costs should be to the Defendant, which should include the costs of preparing the hearing bundles. The arguments are practically a re-run of those before the Master. I order the Plaintiffs to pay costs of $35,000 to the Defendant.

(Queeny Au-Yeung) Judge of the Court of First Instance High Court