Hg Property Investment HK Ltd v. Cheng Mei Holdings Ltd (Dissolved) and Others

HCA 1469/2022

[2026] HKCFI 5881

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1469 OF 2022

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REASONS FOR DECISION

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A.   INTRODUCTION

1.This Decision deals with an application for extension of time to file and serve an affirmation. 

B.   PROCEDURAL BACKGROUND

2.For the purpose of this Decision, it is sufficient to highlight the following procedural history of the present case.

3.On 15 June 2026, the defendants took out a summons (“the Debarring Summons”) for an order to debar the plaintiff from being heard in the present proceedings unless it pays the outstanding costs and accrued interest (both in this action and in a related action) (“the Outstanding Costs”) within 7 days of the order to be made (“the 7 Days Provision”).

4.At the call-over hearing of the Debarring Summons held on 18 June 2026, the plaintiff’s solicitors, having taken instructions, stated that the plaintiff would pay the Outstanding Costs by 17 July 2026.  The defendants’ counsel indicated that in the event the plaintiff failed to pay, the defendants would take out a security for costs application.

5.By reason of the respective representations made by the parties at the said call-over hearing:

(1)  The plaintiff was ordered to pay the Outstanding Costs by 17 July 2026;

(2)  The defendants were directed to take out a summons for security for costs by 24 July 2026 if they were minded to make such an application;

(3)  Parties shall write a joint letter to the Court by 31 July 2026, by which they shall set out, inter alia, their agreed directions on the Debarring Summons and the security for costs summons to be taken out by the defendants (if any), and in the event they could not reach agreement, their respective proposed directions.

6.On 24 July 2026, the defendants applied for further security for costs (“the Security for Costs Summons”).

7.On 31 July 2026, parties wrote jointly to the Court (“the Joint Letter”) and stated, inter alia, that:

(1)  The defendants intended to take out a summons for leave to amend the Debarring Summons and seek an order that the plaintiff be immediately debarred from being heard in this action on the basis that the plaintiff did not comply with this Court’s order dated 18 June 2026 (“the Amendment Summons”);

(2)  They had agreed directions for the disposal of the Debarring Summons, the Security for Costs Summons and the Amendment Summons (collectively, “the Summonses”), which included a direction that the plaintiff shall file and serve its composite evidence in opposition to the Summonses within 21 days. 

8.The defendants had indeed filed the Amendment Summons on the same day (31 July 2026).  It could be seen therefrom that the effect of the intended amendment is to debar the plaintiff from being heard immediately upon court order, without giving it another chance to pay within 7 days.  However, the 7 Days Provision was still kept as the alternative relief sought.

9.This Court accepted the parties’ proposal set out in the Joint Letter and made an order accordingly on 3 August 2026.  In other words, the plaintiff would have until 24 August 2026 (21 days) to file and serve its evidence in opposition.

10.On 21 August 2026, the plaintiff took out a time summons (“the 1^st Time Summons”), and asked for an order that the time to file and serve its evidence in opposition be extended for 35 days from the date of the order to be made.

11.Because of various reasons, the call-over hearing of the 1^st Time Summons was fixed to be heard on 9 September 2026.  Hence, by the time of the said hearing, the time for the plaintiff to file and serve its evidence in opposition had already expired for 16 days.

12.At the hearing on 9 September 2026, time for the plaintiff to file and serve its evidence in opposition was extended to 25 September 2026.  On that occasion, this Court expressly warned the plaintiff’s solicitor that, if the plaintiff made any further application for extension of time, such an application would be likely to be met with an extremely short extension with an unless order.

C.   THE PLAINTIFF’S APPLICATION

13.The plaintiff then took out another time summons on 25 September 2026 (“the 2^nd Time Summons”).  This time, the extension sought was 56 days from the date of the summons.

14.The call-over hearing of the 2^nd Time Summons was fixed to be heard on 7 October 2026.  By then, the time for the plaintiff to file and serve its evidence had already expired by 12 days.

15.In the plaintiff’s speaking note dated 6 October 2026, it was submitted that:

“C. REASONS FOR THIS APPLICATION

3. The 35-day period granted under the Order of 9 September 2026 was insufficient, for three principal reasons.  First, the Plaintiff’s evidence is required to address three distinct applications simultaneously, namely the Debarring Summons, the Security for Costs Summons, and the Amendment Summons, each of which necessitates its own evidential foundation and financial analysis.  Secondly, the Amendment Summons was not issued until 31 July 2026, approximately three weeks prior to the original deadline of 24 August 2026, thereby materially altering the scope of the evidence to be prepared.

D. NO MATERIAL PREJUDICE

4. The Three Summonses are listed for hearing on 12 January 2027.  Even if the Affirmation in Opposition is filed and served on 20 November 2026 and the Defendants’ reply evidence due 14 days later (4 December 2026), the Defendants would still have some five weeks before the fixture for preparing the hearing and skeletons submission.

E. IF THE COURT CONSIDERS AN UNLESS ORDER UNAVOIDABLE

5.  If, however, the Court is of the view that an unless order is unavoidable in light of the indication given on 9 September 2026, the Plaintiff seeks a longer period than 56 days from the date of hearing, so that the unless deadline is realistically achievable.”

F.   DISCUSSION

16.Before I deal with the plaintiff’s arguments, I would like to reiterate a few points which are conducive to achieving the underlying objectives of the Rules of the High Court (Cap.4A, Laws of Hong Kong) (“the RHC”):

(1)  For interlocutory applications which require the filing of evidence[1], the court would give directions at the call-over hearing of the relevant summons (unless the hearing has been vacated with directions given by consent – see further below).  Those directions are tailor-made for the particular application which is before the court.  Therefore, while some may regard “28 days” to be a usual time limit, this length of time in fact should not be regarded as the “time limit by default”.  Parties should inform the court their respective realistic estimation of the time required for the filing of evidence, which may be longer or shorter than 28 days.  The court would of course decide what the time limit should be by reference to all the relevant circumstances of the case, and is not bound by the parties’ agreement on the matter.

(2)  When parties give their respective estimation of time required for the filing of evidence, such estimation should be a realistic one.  A party who has put forward a proposed time limit is expected to comply with it, and should not assume that such a time limit would be extended.  Therefore, parties should treat call-over hearings seriously, and assess the complexity of the application conscientiously before the hearing, so that they are in a position to suggest a realistic timetable for the court’s consideration.  At this stage, unless the particular circumstances of the case concerned require a tight timetable, the court would tend to be more accommodating when fixing the deadline for the filing of evidence so long as the parties’ requests are reasonable.  In fact, by the time of the call-over hearing, the receiving end of the interlocutory applications should have started the preparation of the evidence in opposition.  Therefore, it should not be difficult for such a party to give a realistic estimation of the further time required to complete the drafting work.  It should also be able to inform the court the difficulties it has in the preparation of the evidence so that the court can take such difficulties into account.  On the other hand, when the court considers the reasonableness of the proposed timetable, it would also take into account the time period since the taking out of the summons, particularly when the call-over hearing cannot be heard shortly after the filing of the summons.

(3)  Parties are duty bound to discuss what directions may be agreed and then file a consent summons for the purpose of vacating the relevant call-over hearing.  However, even if the directions are given without a hearing, this does not mean that they have a less onerous duty in ensuring that the agreed directions are appropriate.  They are expected to be satisfied before they sign and file the consent summons that the agreed directions are realistic and suitable in the circumstances of the case.

(4)  If a defaulting party seeks extension of time, the starting point is that this party has failed to comply with a court order. Such a party should therefore aim at remedying the default as soon as possible.  It should, again, assess when it should be able to do so, and insert the length of the extension required in the time summons accordingly.  This is not a bargaining process.  Hence, the defaulting party should not ask for any extension which is more than the time actually required.

(5)  For the above reasons, in my view, it is quite inappropriate for a defaulting party to ask the court for an extension such as “28 days from the date of the order”, for this cannot be the time which is seriously assessed to be required by the defaulting party, given the date of the hearing is simply unknown when the summons is prepared.  The more appropriate way is to insert the exact date of the new proposed deadline or to count the length of extension from the date of the original deadline (or date of the summons).

(6)  When the court decides the length of extension to be granted, one of the relevant matters which the court would take into account is the date of hearing of the interlocutory application concerned.  Having said that, even if the hearing date is still sometime away, it does not necessarily mean that the defaulting party is entitled to a more lengthy extension.  After all, the original deadline was supposed to be complied with.  Furthermore, the earlier the evidence is filed, the sooner the other side would be in a position to assess the merits of the application/opposition.  This would be conducive to the overall progress of the case.  Costs may also be saved if the parties are able to appreciate the weakness of their respective cases earlier.  It follows that it is not necessarily right to say that because the hearing date is still sometime away, the other side would not be prejudiced even if a lengthy extension is granted.

(7)  Insofar as the extension of time sought is lengthy, the defaulting party is expected to explain to the court the reason why such an extension is necessary.  Normally, lengthy extension may only be justified by reason of unforeseen circumstances which render the compliance of a previous court order impracticable, particularly when the previous order was made on the basis of the defaulting party’s own estimation.

(8)  It has been said that a first extension of time usually will not be made on an “unless” basis.  However, it should be borne in mind that the “first extension of time” is not necessarily limited to the particular interlocutory application which is before the court.  In other words, an unless order may be justified even if an application for extension of time is made for the first time in relation to a particular interlocutory application, if the defaulting party has had a history of non-compliance with other court orders in relation to other interlocutory applications or with other deadlines imposed by the RHC in the same case.[2]  The court may also take into account any period which has been extended by consent without an order of the court being made for that purpose.[3]  It all depends on the particular circumstances of the case.

(9)  There have been occasions when the defaulting party would submit that, in the event the court is minded to make an unless order, a longer extension of time would be asked for.  In my view, this submission is entirely inappropriate.  As explained, when the defaulting party applies for an extension of time, it should consider seriously and conscientiously the reasonable time required, but ask for an additional period which is nothing more than that.  Therefore, there is no reason why the court should give more allowance to a defaulting party for the reason that an unless order is going to be made.

(10)  The above observations on extension of time should also be applicable to time summonses to extend deadlines imposed by the RHC.

17.With the above in mind, I now turn to consider the submissions made by the plaintiff.

18.The plaintiff had put forward 3 reasons why a lengthy extension should be granted.  They have been set out in paragraphs 3 and 4 of the speaking notes of the plaintiff’s solicitor which in turn have been quoted above.

19.Firstly, it was said that much time is needed because the plaintiff’s evidence has to address 3 applications. 

20.However, as confirmed by Ms Mak for the plaintiff at the hearing, by the time when the Joint Letter was prepared, the plaintiff’s solicitors were already fully aware of the grounds relied on by the defendants in support of the Summonses.  In particular, while the Amendment Summons was yet to be filed at that time, the defendants’ solicitors had already served the affirmation in support thereof on the plaintiff.  In other words, the plaintiff’s solicitors knew full well the defendants’ case that the plaintiff had to meet when the plaintiff’s solicitors were satisfied that 21 days would be enough for the purpose of preparing and filing its evidence in opposition.

21.Secondly, it was submitted that the Amendment Summons, which was not filed yet by the time the Joint Letter was sent to the court, had materially altered the scope of the evidence to be prepared. 

22.With greatest respect, this submission simply cannot hold water as a matter of fact, given the fact that the defendants’ solicitors had already served the relevant supporting affirmation on the plaintiff’s solicitors by the time when the Joint Letter was prepared.

23.Furthermore, when this Court enquired with Ms Mak at the hearing what additional evidence would have to be prepared in light of the Amendment Summons, she could not give any answer at all.

24.Thirdly, it was submitted that since the hearing of the Summonses would only be heard on 12 January 2027, the defendants would not be prejudiced even if the lengthy extension is granted.  With respect, I do not agree.  As explained, the defendants would be prejudiced because they cannot have sight of the plaintiff’s evidence as scheduled, and as a result they cannot assess the merits of their applications as early as possible.  Further, the plaintiff’s submission had been put forward on the assumption that the defendants would for sure be able to file and serve their composite evidence in reply within 14 days after the plaintiff’s filing and service of its evidence, which may or may not be correctly made.  This Court simply cannot make any meaningful assessment at this stage.

25.At the hearing, Ms Mak for the plaintiff gave a further reason to justify the lengthy extension of time.  It was said that the plaintiff has to seek counsel’s advice on the effect of the Amendment Summons.  I am afraid this is a thoroughly bad point.  The purpose of the Amendment Summons is crystal clear and I do not think it will take counsel a long time to consider the effect thereof, even if counsel’s advice is necessary.

26.Ms Mak further stated that she would ask for a longer extension if this Court is minded to make an unless order.  With greatest respect, this submission (together with the request of “56 days from the date of the 2^nd Time Summons”) was made in total disregard of the warning given by this Court at the hearing held on 9 September 2026.  As explained, this kind of submission is totally inappropriate.

27.All in all, bearing in mind the warning given in the last hearing, and the fact that the plaintiff had been unable to put forward any change in the circumstances since the date of the Joint Letter, I held the view that the Court should only allow a short extension with an unless order.

G.   ORDER

28.I therefore ordered that unless the plaintiff files and serves its composite evidence in opposition to the Debarring Summons, the Security for Costs Summons and the Amendment Summons by 4pm on 14 October 2026, the plaintiff shall be debarred from doing so.

29.The time for the defendants to file and serve their composite evidence in reply should also be consequentially extended to 28 October 2026[4].

H.   COSTS

30.By consent, the costs of the 2^nd Times Summons agreed at $1,200 shall be paid by the plaintiff to the defendants no later than 21 October 2026.

Ms Mak Kwok Ying Scarlett of Tung, Ng, Tse & Lam for the plaintiff

Ms Yeh Hoi Kei Jaime of Weil, Gotshal & Manges for the defendants