XCHRX FORWARD ELECTRIC CO. LTD. v. WITTIS ELECTRONICS LTD.

HCA 22366/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 22366 OF 1998

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R U L I N G

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1. There are two summonses of the Defendant before the court.

2. The first, taken out last Friday, is for leave to file and serve an amended defence and counterclaim within 3 days. If granted, such an order would inevitably necessitate the adjournment of the trial which has been fixed for hearing next Tuesday, 3 October, (the day following the public holiday next Monday) for 3 days.

3. The second summons which was taken out yesterday is for the trial date to be vacated and the matter adjourned for a date to be fixed with 3 days reserved.

4. The writ in this action which is for goods sold and delivered was filed on 30 December 1998. The Defendant's defence, which was filed on 28 January 1999, amounts to a simple denial that the goods were ever sold and delivered to the Defendant.

5. I note that the amendment the Defendant now seeks to make would amount to an almost complete reversal of this defence, namely an acceptance that the goods were sold and delivered, but an allegation that they were not of the quality contracted for, and delivered not in Hong Kong but in the PRC. The amended Defence, therefore, would raise completely new issues. I note also that the proposed amended defence and counterclaim lacks particularity, particularly in paras. 11 and 25.

6. The Defendant's first summons was taken out despite an order by Yeung J on 22 March this year, over 6 months ago, that the Defendant should have leave to amend its defence within 14 days. No amended defence was ever filed nor was any application made to extend the time for filing such defence. It is not an acceptable excuse that those responsible within the Defendant company had been in Singapore in the meantime. Moreover, an application for leave to amend should not have been made to Yeung J if the Defendant did not know the amendments they were seeking to make.

7. The order of Yeung J is just one of the number of orders of the court with which the Defendant company has failed to comply.

8. Upon hearing the hearing of the Summons for Directions on 7 May 1999, Master Ho made orders for the filing and service of lists of documents and for the filing and exchange of witness statements.

9. The Defendant failed to comply with either order within the time specified.

10. The Defendant did not file its list of documents until after the Plaintiff had taken out a further summons dated 12 June 1999 and Master Barnes had made a further order on 15 June in respect of such a list of documents.

11. Defendant did not comply with the order to file and exchange signed witness statements until after two further summonses issued by the Plaintiff and consequent orders of the court on 15 October and 5 November 1999.

12. Rules of court and orders made under those rules are made to ensure that justice is done between the parties and the court must be vigilant to see that those rules are not used as a means to delay justice. I am satisfied with the conduct of the Defendant in these proceedings demonstrates an intention to delay the proceedings.

13. I am not impressed by the reasons advanced by the Defendant in an affirmation of Mr Lee Chi Man, which has only been handed to me today in support of the application to adjourn the trial. Travel between Hong Kong and Singapore takes little over 3 hours. There would be no necessity for both Mr Ying and Mr Lee to be present in Hong Kong throughout the trial. One or both of them could be in Singapore to handle any matters in relation to the listing of the company to which he refers. Furthermore, the timing of the listing application was ultimately in the hands of the Defendant company. They have known since April this year the date of this trial.

14. In conclusion the Defendant in this case has received the indulgence of the court on the number of previous occasions. If it was granted the indulgence it seeks on this occasion it would result in the postponement of the trial for which the Plaintiff has been ready for more than a year. I am satisfied that to delay the trial in these circumstances would be to prejudice the right of the Plaintiff to have its claim heard without undue delay. The Plaintiff could not be compensated for such delay by an order for costs. I, accordingly dismiss both summonses.

15. As far as costs are concerned I order the Defendant to pay Plaintiff's costs of both applications.