United Kesvick Ltd v. Tsang Wing Fai and Others

HCA 804/2019

[2020] HKCFI 159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 804 OF 2019

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Before: Deputy High Court Judge Blair in Chambers

Date of Hearing: 3 January 2020

Date of Ruling: 3 January 2020

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R U L I N G

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1.There are two applications before the court today. The first relates to an injunction granted on 6 September 2019 restraining the 2nd and 3rd defendants from disposing of certain assets. That was fixed to come on today some time ago with a time estimate of one day. That time estimate was set out in an order made by Mr Justice K Yeung on 13 September 2019. The second matter is the one which concerns the 1st defendant specifically. That is an application for default judgment to be entered against 1st, 2nd and 3rd defendants together with certain ancillary orders.

2.The 1st defendant, as I shall explain, seeks to adjourn this hearing.  Although it is said on behalf of the plaintiff that he is in the habit of making such applications at the last moment, and indeed that is correct, the application is made under what for the 1st defendant are very difficult circumstances.  There is no doubt that among his health problems is a diagnosis of advanced lung cancer.  Unfortunately, the underlying dispute between him and his brother has given rise to numerous actions of which this is just one.

3.The position so far as the timing is concerned is that the Statement of Claim was served on 2 October 2019.  There were then applications by the 1st and 2nd defendants for legal aid which imposed a stay which expired on 4 and 11 November respectively.  So on that basis, defences were due on 2 and 4 December respectively.  No defences were in the event served and indeed have still not been served.

4.In those circumstances, the plaintiffs, acting in effect through the administratrix of the estate appointed by the court, not surprisingly seek to enter judgment in default.  The plaintiff is entitled to enter judgment in respective default of the defence without coming to court but only in respect of monetary claims. The claims made against the defendants include proprietary claims based on alleged duties as director and/or executor.

5.On 23 December, a summons was taken out accordingly to enter judgment, including proprietary claims.  The 1st defendant contacted the court on 31 December, by which time he had received the plaintiff’s skeleton arguments and hearing bundles.  He says that he will not have time to read the material and prepare properly for today’s hearing.  He has also told me that apart from medical treatment, he has had to deal with a six-day trial in relation to another aspect of this matter which took place in November.  It is impossible not to sympathise with the 1st defendant in the circumstances that I have outlined.

6.On the other hand, it is important that this estate is administered as quickly as possible and the affairs of the estate are wound up.  This particular action is relatively important in that regard because the plaintiff company is a holding company for assets of the deceased. 

7.The position at present is that the plaintiff would be entitled without more to sign judgments for the monetary claims brought against the defendants.  No order of the court is required in that regard. The proprietary claims involve exactly the same calculations and numbers but if granted by the court will enable, among other things, tracing into assets.  These are all set out in the necessary detail in the Statement of Claim which, as I have said, the defendants have had since 2 October 2019.

8.The situation is obviously not a happy one but the reality is that adjourning the matter today will simply lead to extra time and extra expense.  There has been no real indication by the 1st defendant or the other defendants as to a defence to these claims.  By defence I mean of course a defence in law.  It may very well be that the 1st defendant feels that he is morally justified but that is not something which the court can take into account.  The 1st defendant has put in along with his statement of 31 December certain schedules that can, in my view, be properly taken into account today.

9.For all those reasons therefore the application for an adjournment is refused and the summons to enter default judgment will go forward today.  That is my ruling on that aspect of the matter.

Mr Kerby Lau, instructed by Hugill & Ip, for the plaintiff

The 1st and 2nd defendants appeared in person

The 3rd defendant was not represented and did not appear