STEADFAST INTERNATIONAL LTD v. TUENBO CO LTD AND OTHERS

HCA 2095/2016

[2021] HKCFI 2115

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2095 OF 2016

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D E C I S I O N

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1.  In this application, the plaintiff applies for a third extension of time to file its affirmation in opposition to the application of the 2nd, 3rd, 4th, 6th and 7th defendants to, amongst other things, discharge the injunction, for leave to re-amend their defence and to address summary judgment. The previous applications have been granted by consent but time is now moving on and the substantive hearing is in November.

2.  In all the circumstances, I am of the view that it is appropriate to accede to the defendants’ request that any extension be granted on an unless basis.  The condition of the unless order requested is that unless the affirmation be served by the time indicated in the order, then the plaintiff be debarred from adducing any further affirmation.  That, I believe, is an appropriate sanction in the circumstances of this case notwithstanding that there has not been a final order. 

3.  I am told by Mr Cheng on behalf of the plaintiff that they have now received all of the material which is required for the purposes of the affirmation, in particular, all the numbers to address the calculations which are relevant, but they simply need time to check it before filing an affirmation, and he says that if it is to be an unless order, it should be two weeks from today.

4.  Mr Lee for the defendants says two weeks is too long because if one allows equal time to the defendants to reply, which was the basis of the original order by Madam Justice Mimmie Chan, that would take the time to reply out until the end of October which is too close to the hearing due to be heard on 4 and 5 November 2021.

5.  In my view, two weeks is appropriate.  I will allow two weeks on an unless basis.  I do not see any reason why at this stage the defendants need 100 days extra above that which was previously ordered in order to reply to the evidence.  In my view, they remain under an obligation to reply in accordance with the original order.  If reasonable or short extensions of time for a reply are necessary, then they can apply to the court for that but I do not encourage them to do so.  This is something that needs to be progressed efficiently and effectively, and the parties should not take the view that they will have a clear run in an application for further time.

6.  So I will make an order on the basis that the plaintiff have an extension of time up until and including the...

(Discussion re extension of time)

7.  Until 14 July 2021 to file its evidence in opposition to the summons dated 1 March 2021.

8.  If the plaintiff does not file evidence by that date, it is debarred from filing evidence in opposition.  That has the effect of an unless order and the costs of this application be paid by the plaintiff and summarily assessed at $1,040.