FUJI XEROX (HONG KONG) LTD v. STARA PRODUCTIONS LTD AND ANOTHER

DCCJ 3602/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3602 OF 2009

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REASONS FOR DECISION

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Background

1. In these proceedings, the 1st and 2nd Defendants appeal against the Judgment entered by Master S. Lo on 25 February 2010 and an application for leave to appeal out of time.  The appeal was set down for hearing on 6 May 2010.  The day before on 5 May 2010 the 2nd Defendant who was also the representative of the 1st Defendant advised this Court by  post that she was ill and was unable to attend the hearing on 6 May.  In support, she enclosed a medical certificate certifying sick leave granted to her from 5 to 10 May 2010.  The Defendant sought the indulgence of the Court to adjourn the matter.  In granting such an indulgence, I adjourned the hearing to 12 May 2010 at 2:30 p.m.  As of this morning the 2nd Defendant in her own capacity as well as the representative of the 1st Defendant retained Messrs. Cheung and Choy to represent the Defendants.  Mr. Chan for the Defendants submitted a letter signed by the 1st Defendant enclosing another sick leave certificate for  the 2^nd Defendant dated 12 May 2010.  The doctor concerned certified sick leave for the 2nd Defendant from 12 to 15 May.

2. At the hearing on 12 May, Mr. Chan for the Defendants applied for an adjournment on the basis that he could seek full instructions from the Defendants.  Mr. Yeung for the Plaintiff  objected to the application to adjourn the present hearing.  In support, he drew the Court's attention to the fact that the Summons for Summary Judgment was issued on 19 October 2009.  The first call-over hearing was heard on 27 November 2009.  There were subsequently two further hearings on 18 December 2009 and 15 January 2010.  It was on the fourth hearing on 25 February 2010 that Judgment was entered against the Plaintiff.  The costs of this action were disproportionate to the amount claimed in question and the matter had been "dragging on" for a long time.  If the 2nd Defendant wished to seek legal advice, they could have done so earlier.  I agree.  On the last occasion  when I granted indulgence to the Defendants, noting that the 2nd Defendant was granted sick leave until 10 May, I adjourned the matter to 12 May to allow the 2nd Defendant  to adequately prepare for this matter and / or to seek legal advice if the Defendants so elected.  As of 12 May, another sick leave certificate was presented to me indicating that the 2nd Defendant sought a medication consultation earlier on that day granting her sick leave from 12 May until 15 May 2010.  It is noteworthy that in between the periods certified for sick leave, the 2nd Defendant could have sought legal advice then.  In any event, the 1st Defendant being a limited company need not necessarily be represented by the 2nd Defendant and there is no explanation from the 1st Defendant as to why it needs to be represented by the 2nd Defendant. The Court's indulgence has been exhausted and I am not prepared to grant any further adjournments.

3. In relation to the application for me to apply for leave to appeal out of time and to appeal against the Summary Judgment, I  note that Judgment was entered against the Defendants on 25 February 2010.  The time for appealing against the Judgment is 14 days which expired on 11 March 2010.  The Notice of Appeal was only issued on 23 March 2010 and was served late on the Plaintiff.  There is no explanation by the Defendants as to why the Notice of Appeal was issued out of time save the speculation by Mr. Chan for the Defendants, and he puts it no more than that, that the Defendants might not have known that the time for appeal ran from the date Summary Judgment was entered.  In  the absence of any or any valid explanation, the Court is not willing to grant leave to appeal out of time.  Accordingly, I order as follows:- (i) the Defendants' summons dated 23 March 2010 be dismissed; and (ii) that the Defendants do pay the Plaintiff's costs which I have summarily assessed at HK$15,600  within 28 days hereof.