Chan Wai Ming and Another v. Chan Wai Lun and Others

HCMP000775/1995

1995, No. MP775

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 775 of 1995

_______________

________________

Coram: The Honourable Mrs Justice V. Bokhary in Chambers

Dates of Hearing: 8 and 12 March 1999

Date of Delivery of Judgment: 12 March 1999

________________

J U D G M E N T

________________

1. I dismiss the 1st Defendant's striking out application but allow his appeal against the Master's refusal to order that these proceedings continue as if begun by writ.

2. It is true, as the 1st Defendant says in seeking a striking out, that there has been considerable delay. It is also true, as the Plaintiffs say in resisting an order that these proceedings continue as if begun by writ, that the proceedings are at an advanced stage.

3. In answer to both those points, however, there is this. The facts are hotly in dispute, range over a long period and need to be sifted with care. That means two things. First of all, it means that one cannot safely say, one way or the other, at an interlocutory stage whether the Plaintiffs are to be defeated by laches. Secondly, it means this. The court needs all the assistance it can get, including the discipline of pleadings, in seeking the truth; and even if that results in some additional expenditure of time and money initially, it is the prudent course in the long run.

4. As to the directions to be made upon it being ordered that these proceedings continue as if begun by writ, the 1st Defendant's summons of 17th October 1998 in this regard asked for directions that the Plaintiffs file and serve their Statement of Claim within twenty-one days, and that the 1st Defendants file and serve his Defence within twenty-one days thereafter. I make these directions, and further direct that the Plaintiffs do file and serve their reply, if any, within fourteen days thereafter. I also give the parties liberty to apply to a Master for further directions.

5. I will now hear the parties as to costs, including the costs of the 1st Defendant's summons of 17th October 1998 which came before the Master.

[Arguments as to costs]

6. As far as the costs before me are concerned, each side has had a share of success and failure before me. I would like to keep things simple and relatively less costly for the parties. To that end, I will make no order as to the costs of the appeal or the striking out summons before me. The parties will bear their own costs of the same. To the same end, I will make the costs of and occasioned by the 1st Defendant's summons of 17th October 1998 which came before the Master costs in the cause, which happens to be what is asked for in the summons itself.

Representation:

Mr LING Chun Wai (instructed by Messrs Wong, Fung & Co.) for the Plaintiffs/Respondents.

Mr Nelson MIU (instructed by Messrs Hobson & Ma) for the 1st Defendant/Appellant.

Remarks:
On appeal by the 1st Defendant to the Court of Appeal: Appeal dismissed. Please refer to judgment CACV000092/1999.