Ntt Data Hong Kong Ltd v. Octo3 Ltd and Another

HCA 344/2020

[2020] HKCFI 2336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 344 OF 2020

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Before: Hon Mimmie Chan J in Chambers (Open to public)

Date of Hearing: 4 September 2020

Date of Ruling: 4 September 2020

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R U L I N G

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1.Under Order 20 rule 3 (2) (b) RHC, where an amended statement of claim is served on a defendant, the period of service of the defence/amended defence “shall be” 14 days after the amended statement of claim is served on the defendant.

2.The Statement of Claim in this case was served in May 2020.  The Statement of Claim was then amended and the Amended Statement of Claim was served on 19 August 2020.  At the time of the issue on 10 July 2020 of the Plaintiff’s summons for judgment in default, the extended time to file the Defence has not expired.  (See also paragraph 20/4/7 of the Hong Kong Civil Procedure.)

3.Under Order 19 rule 7 (1) RHC, a plaintiff may, after the expiration of the period fixed by or under the rules for service of the defence, apply to the court for judgment to be entered in default.  The summons on 10 July 2020 was premature, before the time extended for the service of the defence has expired, and the application for judgment in default is dismissed.

4.The summons on 10 July 2020 was only fixed for a 3-minute hearing.  I refused to hear a new summons purportedly issued on 3 September 2020, since there cannot be 2 clear days for service of the said summons on the 1^st Defendant, as required under Order 32 rule 3 RHC, and I see no reason whatsoever why service of 2 days’ notice should be dispensed with.  The Plaintiff is seeking new and additional relief in the Amended Statement of Claim and judgment is sought on the basis of the Amended claim for relief.  To the extent that Order 65 rule 9 is applicable, as argued by Counsel, I ordered that the summons of 3 September 2020 be served on the 1^st Defendant to give notice of the Plaintiff’s application for the additional relief sought in the Amended Statement of Claim.

5.The Plaintiff’s issue of its summons on 10 July 2020 before expiration of the time fixed for service of the Defence, and its attempt to schedule the hearing of its later summons issued on 3 September 2020 at the hearing of the 1^st summons is jumping the queue and an abuse of the court process.

Mr Adrian Lo, instructed by Robert Lee Law Offices, for the plaintiff

The 1^st defendant was not represented and did not appear