XCHRX CHOW MEI HAN v. FUNG KAN KI

HCA 2251/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2251 OF 2000

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R U L I N G

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1. On 3 April 2001 I made an order that unless the Defendant file and serve on the Plaintiff his witness statements within 14 days, the defence filed by the Defendant be struck out and the counterclaim dismissed with costs and the Plaintiff be at liberty to enter judgment against the Defendant for the relief claimed in the Statement of Claim with costs.

2. The matter came before me that day on a summons by the Defendant for an extension of 7 days to file his witness statements. I was told by the solicitors at the hearing on 3 April that they had agreed that the extension should be for 14 days but that it should be on the basis that the court made an "unless order".

3. Even at that stage there had been a history of default by the Defendant in compliance with directions for filing of witness statement.

4. On 6 September last year, Master Barnes had made an order that the parties file and exchange witness statements within 42 days. Despite that order, the Defendant's then solicitors K M Lai & Lee filed a checklist on 8 February 2001 in which they said that two witnesses would be called by the Defendant on factual issues but they had not prepared proofs of evidence. On 14 February 2001, Yeung J made a further order that the time for the parties to serve and file witness statements be extended for 21 days. That would have meant that the witness statements should have been filed in early March. This was the background to the summons of 29 March which came before me on 3 April when I made the "unless order".

5. In order to comply with the "unless order" made by me on 3 April 2001, the Defendant would have had to file and serve his witness statements on or before 17 April. He did not do so.

6. He now applies by summons for a further 14 days to file and serve them. The Plaintiff on the other hand applies for the defence to be struck out and hence judgment to be entered on the grounds of non-compliance with my order.

7. No affidavit has been filed by the Defendant and I have been given no explanation by Mr Yu as to why the Defendant failed to file his witness statements on or before 17 April. He has told me that the Defendant came to his firm at around 4 pm on 17 April in order to instruct them and he has told me what efforts have been made since then to prepare a witness statement. Mr Yu told me that the only reason which the Defendant gave him for wishing to change solicitors was that he was not satisfied with his previous solicitors. This in itself is not an explanation of why he should have failed to comply with the court's order.

8. In the circumstances in the absence of any material upon which to exercise my discretion, it seems to me that it is inappropriate to extend the time for compliance with my "unless order" of 3 April. I, accordingly, dismiss the Defendant's summons of 18 April and I make an order that the defence filed by the Defendant be struck out and the counterclaim be dismissed with costs and the Plaintiff be at liberty to enter judgment against the Defendant for the relief claimed in the Statement of Claim herein with costs. I order that the costs of both summonses before me today be taxed and paid by the Defendant.