XCHRX GOLDEN EXCEL LTD. v. KO YIU KIN DAVID

HCMP 5315/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5315 OF 1998

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R U L I N G

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1. The Defendant has taken out an application by way of summons issued on 28th December 1998 to "have leave to file and serve his affidavit evidence, if necessary, as directed on the Defendant's application for striking out of the Plaintiff's Originating Summons".

2. The Defendant has previously taken out an application to strike out the Originating Summons on the ground that it discloses no reasonable cause of action. That striking out application is due to be heard on 2nd July 1999.

3. The Defendant has meanwhile asked for an order that he not be required to file any evidence in opposition to the evidence filed by the Plaintiff in the Originating Summons until after the hearing of the striking out. However, the Defendant has not been able to point to any prejudice that he would suffer if his evidence is filed now.

4. In my view, all the circumstances point towards my giving directions that the Defendant be required to file his evidence now. The Originating Summons was issued in October 1998. The Defendant has already asked for and been granted two extensions of time to file his evidence. It is a well-established principle that an application for striking out does not operate as a stay. Given that the striking out application will not be heard until July 1999, some 9 months after the issue of the Originating Summons, and that no real prejudice has been shown by the Defendant why he should not file his evidence before the striking out, in the exercise of my discretion, I would dismiss the Defendant's summons of the 28th December 1998 and in relation to the directions to be given on this Notice of Appointment to hear the Originating Summons, I would give him leave to file any affirmation (or affirmations) in opposition within 28 days of today, to take into account the Chinese New Year break.