XCHRX POSCO ASIA COMPANY LTD. v. SGS HONG KONG LTD. and Another

1995, No. CL84

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The first defendant has issued a summons under Order 24 rule 7 seeking an order that the plaintiff state whether certain documents are, or have been, in its possession, custody or power. The documents concerned are -

1. all inspection certificates and documents issued by the Chinese Commodity Inspection Bureau (CCIB) relating to two consignments of 10,000 and 21,000 metric tonnes of steel billets purchased by the plaintiff from a company known as Habas by contracts dated 17 May 1994 and 24 March 1994; and

2. All pleadings, experts' reports, witness statements and open correspondence passing between the plaintiff or its legal advisers and Habas or its legal advisers in any arbitration proceedings arising from those contracts, and any award made in any such proceedings.

2. On 20 December 1995, the first defendant's solicitors wrote to the plaintiff's solicitors asking if the plaintiff had the CCIB documents. On the next day, the 21 December 1996, they wrote about the arbitration documents. On 22 December 1995, the plaintiff's solicitors replied saying that the casehandler was absent until 2 January 1996 and asked that the matter be deferred until 9 January 1996. The first defendant's solicitors responded on 23 December saying that they would not delay the matter and enclosing the summons in this matter issued on 22 December 1995.

3. Mr Brooks, with some justification, I think, complains about this indecent haste. There is nothing that I can see that justifies the second defendant treating this matter as one of such great urgency. However, Mr Brooks says that the summons should be dismissed because the second defendant has not made out even a prima facie case for the relief sought. If I do not accept this, he asks that I adjourn the matter so that he can be properly instructed. I do not accept that the second defendant has not made out a prima facie case. There is, in my view, reason to believe that the documents concerned, or, at least, some of them, exist and that they would be relevant to an issue. I accept that the plaintiff should be given more time in order to prepare a case to answer that raised by the second defendant.

4. Accordingly, the summons is adjourned sine die, with leave to bring the matter on again after the lapse of 14 days. I reserve the costs of the hearing before me, but intimate to the second defendant that I am inclined, in the absence of justification for failing to accede to the plaintiff's request for more time, which I regard as reasonable, to award the cots of that hearing to the plaintiff.