Tasmania Feedlot Pty. Ltd and Others v. Toll Global Forwarding (Hong Kong) Ltd

HCAJ 9/2023, HCAJ 22/2023
(Consolidated)

[2024] HKCFI 2722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NOS. 9 AND 22 OF 2023

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(Consolidated by Order of Master Dick Ho dated the 4^th day of January 2024)

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DECISION

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1.These are my reasons in succinct terms for dismissing the Third Party’s application to amend its strike out Summons filed on 30 July 2024 (“said Summons”) by including an issue to be determined as a preliminary point of law or summarily under O.14A. Insofar as the amendment concerns the deletion of the parts of the said Summons, that is allowed.

2.The new issue concerns the true construction of the Package Limitation Clause (“Clause”) contained in the Master Sea Waybill (“Waybill”). The Defendant’s pleaded case is that the Waybill was not part of the contract of carriage between it and the Third Party. However, I should add that there is certainly ambiguity in the pleadings, but what I just said represents at least one view of the pleaded case of the Defendant. Further, the Defendant contends that the Clause is unenforceable under common law.

3.The said Summons is due to be heard on 2 October 2024, two working days from now. There is at least an arguable case that the determination of the new issue would involve factual evidence, which cannot be prepared in time for the hearing of the said Summons.

4.Further, the resolution of the new issue is not a straightforward matter which can be accommodated within the allocated time for the hearing of the said Summons. It is plainly undesirable to overload the hearing with the risk of a truncated hearing and the attendant delay and wastage of costs.

5.I shall hear the parties on costs.

Mr Josh Baker, instructed by Kennedys, for the Defendant

Mr Chan Pat Lun, instructed by Stephenson Harwood, for the Third Party