XCHRX LG ELECTRONICS HONG KONG LTD. v. BANK OF TAIWAN

HCCL7/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO.7 OF 2001

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J U D G M E N T

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1. This is an application by the defendant principally for extending time for the filing of a Defence and also for an order that the time for the Acknowledgement of Service be extended to 9 October 2001.

2. What happened is this : The defendant applied under Order 12, rule 8 for the jurisdiction dispute to be resolved in the defendant's favour, challenging the court's jurisdiction over the defendant. The application failed and decision was given by Kwan J, I believe on 11 September. At the conclusion of the hearing, and when the reasons was handed down, there was no reference to the time for the defendant to enter another Acknowledgement under Order 12, rule 8(6), nor was there any reference to the time for the filing of the Defence and this was unfortunate but these things do not always require a strict order of directions and in most cases, parties can reach some sensible agreement as to the time limit for acknowledgement and for the filing of Defence. Unfortunately in this case, there was a breakdown in communication resulting in the defendant rushing to make this urgent application this afternoon before me sitting as the duty judge. The reason for this rush was because the plaintiff threatened to enter default judgment and this is notwithstanding telephone conversation as well as two letters sent earlier today by solicitors for the defendant, asking for an extension of time until 19 October or at least acknowledgment by the plaintiff that the plaintiff would give the defendant reasonable time.

3. So, that is the reason why this urgent application today is made. It seems to me that the plaintiff had been unreasonable in not giving at least a reasonable time to the defendant to file its Defence. If that had been done, then today's urgent application must be unnecessary. The time sought is not so unreasonable having regard to the nature of the case. It is a claim for refusal to honour a Letter of Credit and there may be some technical matters that would have to be considered and raised in the Defence such as no strict compliance. I do not know the details of this but it seems to me that in a matter such as this, the time sought is not unreasonable.

4. I therefore come to the view that the order sought by the defendant namely for Acknowledgment of Service by 9 October which in fact had taken place and for the service of the Defence by 19 October are reasonable and that the costs of the application should be paid by the plaintiff to the defendant. I have heard the parties on the question of the quantum of costs and exercise my powers under Order 62, rule 9(4)(b) by way of gross sum assessment : I assess the amount payable by the plaintiff to the defendant in the sum of $3,000 which sum is to be paid forthwith.