Ong Pui Ling Tracy v. 上海世茂北外灘開發建設有限公司 and Others

HCPI 736/2018

[2021] HKCFI 995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 736 OF 2018

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DECISION

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1.This is an appeal against the decision made by Master Kot on 18 March 2021 (“the Decision”).

Background

2.Pursuant to the Consent Order made by Master Kot on 22 January 2021, leave was given to the plaintiff (“P”) to file and serve an Amended Statement of Claim with 14 days, and leave was also given to the Defendants (“Ds”) to file and serve their respective Amended Defences within 28 days from the date of service of the Amended Statement of Claim.

3.On 27 January 2021, P filed and served the Amended Statement of Claim.  Accordingly, the time for Ds to file and serve their respective Amended Defences would be up to 24 February 2021.

4.On 5 March 2021, Ds took out a summons (“Ds’ Summons”) seeking an extension of time up to 21 April 2021 for filing and serving their respective Amended Defences.  On the same day, P also issued a summons (“P’s Summons”) seeking an unless order compelling Ds to file and serve their respective Amended Defences within 28 days, otherwise Ds would be debarred from doing so.

5.Ds’ Summons and P’s Summons were heard by Master Kot on 18 March 2021.  The Master allowed Ds’ application and dismissed P’s application.  On the same day, P lodged an appeal against the Decision.

6.The appeal was heard by me today.  I approach the matter as if Ds’ Summons and P’s Summons came before me for the first time[1]. 

The principles

7.As to when an unless order should be made, DHCJ Le Pichon has set out the relevant principles in KM Cheung & Co v Kung Ching[2].  In that case, the learned judge said:

“23. What I do find troubling is the fact that an ‘unless’ order was made at all. In that connection, the following passage from the judgment of Ward LJ in Hytec[3] (set out in § 21 of Ping Kai[4]) is particularly relevant:

‘(1) An unless order is an order of last resort. It is not made unless there is a history of failure to comply with other orders. It is the party’s last chance to put his case in order.’ (emphasis added)

24. In the present case, there is no ‘history of failure to comply’ with court orders. No prior orders, whether for the provision of particulars or otherwise, have been made in the action. The November summons was the first application for an order. While the plaintiff failed to provide particulars after obtaining an extension of time from the defendant, equally, there was never any reminder or further request(s) from the defendant for the particulars which one would have expected in the normal course of events.

25. As Ward LJ observed, an ‘unless’ order is an order of last resort; it is the ultimate sanction. It becomes meaningless if it is made on a first application for relief or as a matter of routine. The Civil Justice Reform (“the CJR”) did not effect any change in that regard. Nor (I might add) did it dispense with common courtesy. In my view, an ‘unless’ order should not have been made on the November summons. It was entirely inappropriate.”

Analysis

8.In my view, there is no merit in this appeal at all.

9.Ds’ Summons is the first application by them for time to file and serve their respective Amended Defences in response to the Amended Statement of Claim filed and served by P on 27 January 2021.  There is no history of failure to comply with court orders made in these proceedings by Ds.  There is no reason to impose an unless order in Ds’ first application for time to file and serve their respective Amended Defences.  The appeal must be dismissed.

10.There is a further reason for dismissing this appeal.  By the Notice of Appeal dated 18 March 2021, P is seeking an order to set aside the order made by the Master, and an unless order to require Ds to file and serve their respective Amended Defences within 28 days from the date of the order made in the appeal hearing.  If P’s appeal is allowed, that would mean that Ds would have time to file and serve their respective Amended Defences on or before 11 May 2021.  However, under the order made by the Master, Ds would only have time to file and serve their respective Amended Defences up to 21 April 2021.  In the hearing on 18 March 2021, the Master has said that if Ds make a second application for time, a 7-day or even less unless order would be imposed[5]. That means, as the matter now stands, Ds would have to file and serve their respective Amended Defences by 21 April 2021, and cannot obtain a further time extension for more than 7 days thereafter.  With respect, I really do not see why it would be necessary to try to set aside the Master’s order in these circumstances.

Disposition

11.I dismiss the appeal.

12.Costs should follow the event.  For the reason set out in [10] above, I am of the view that this appeal is so unreasonable and should be visited upon by an indemnity costs order.  I make an order that costs of the appeal be paid by P to Ds forthwith and those costs be summarily assessed on an indemnity basis.  There be leave to Ds to file and serve a written bill of costs for summary assessment within 7 days, and leave to P to file and serve a written reply to the said bill within 7 days thereafter.

Ms Yaqing Wu of Cheng, Yeung & Co, for the plaintiff

Ms Natalie So, instructed by Kennedys for the 1^st defendant and instructed by Mayer Brown for the 2^nd and 3^rd defendants