IU PO SHING PATRICK v. EMPRESA HOTELEIRA DE MACAU, LIMITADA also known as MACAU HOTEL DEVELOPERS LTD AND ANOTHER

HCMP 1495/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1495 OF 2009

(ON AN INTENDED APPEAL FROM HCA NO. 1461 OF 2007)

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D E C I S I O N

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Hon Rogers VP:

1.  This is an application for leave to appeal the order made by Reyes J on 23 July 2009 whereby he dismissed the second defendant’s application to set aside the ex-parte order made by Master Ko on 29 September 2008 whereby the master:

(1)   extended the validity of the writ and concurrent writ for 6 months and

(2)   allowed substituted service of the concurrent writ to be effected on the second defendant's solicitors.

2.  In my view there are no reasonable grounds of appeal in this matter.  The first and major point which is taken on behalf of the second defendant is that there had been material non-disclosure when the application was made before Master Ko.  The two matters of non-disclosure alleged were first that there was a potential limitation defence to the plaintiff’s claim.  The second alleged non-disclosure was that the master had not been informed that the second defendant’s solicitors had indicated they wished to be heard on any application.  I entirely agree with the conclusion of the judge that it could not be said, by any stretch of the imagination, that the second defendant's solicitors wish to be heard could conceivably have affected the master’s decision.

3.  As the judge said at paragraph 22 of his judgment it would have been self-evident on the writ alone that there were time-bar problems and any suggestion that the master would not have been aware of it would be a suggestion that the master had not even read the writ.

4.  Other grounds in the notice of appeal would appear to be even less meritorious.  It is suggested that the judge had been wrong in saying that there were difficulties which the plaintiff had encountered in serving the writ.  I would simply say that having considered the papers, the judge’s comment in this respect was mild.  It would appear to me that the second defendant, whilst knowing full well of the existence of the writ, through himself, his staff and his solicitors and other lawyers strained every nerve to prevent service of the writ upon himself.

5.  The other main point taken on behalf of the second defendant is that the judge misapplied Order 12 rule 8(6).  That is a rule which has been re-drafted as part of the Civil Justice Reform.  The rule in its present form reads:

“(6)  A defendant who makes an application under paragraph (1) or (2) shall not be treated as having submitted to the jurisdiction of the court by reason of his having given notice of intention to defend the action; but if the Court makes no order on the application or dismisses it, the notice shall stand unless otherwise directed by the Court and the defendant shall be treated as having given notice of intention to defend the action.”

6.  That rule is very clear.  Unless the judge makes an order the defendant shall be treated as having given notice of intention to defend the action.  The rule clearly gives the judge a discretion.  No grounds have been shown for interfering with the judge’s discretion apart from a suggestion that amounts to an argument that the judge should have ignored the new rule and applied the old rule.  In my view there is no ground in this case for challenging the exercise of the discretion exercised by the judge not to make an order.  I would also go further by saying that it would appear to me that the rule is directed to facilitate the administration of justice by treating the defendant as having given notice to defend and thus avoiding any unnecessary further delays, unless the court saw good reason otherwise.

7.  In the circumstances, I would refuse this application for leave to appeal and make an order under Order 59 rule 2A(8) that since this application is totally without merit, no party may request the determination to be reconsidered at an oral hearing inter partes.  In view of the prolix nature of the submissions on behalf of the plaintiff, I would make an order nisi that there be no order as to costs of this application.

Hon Le Pichon JA:

8.  I agree with the decision of Rogers VP and the order he proposes.

Hon Rogers VP:

9.  The application for leave to appeal is, therefore, refused and there will be an order that no party may request the determination to be reconsidered at an oral hearing inter partes.  There will be no order as to costs.