David T.V. Lieu and Others v. Cargocean Shipping Co Ltd

Case No.HCA 1391/1975

Court

High Court CFI

Date10 Dec 1975

Judge—

Case Document

100%Judiciary

HCA001391/1975

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1391 OF 1975

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BETWEEN
	DAVID T.V. LIEU	1st plaintiff
	LIANG PING LOH	2nd plaintiff
	RAMON YOUNG	3rd plaintiff
	and
	CARGOCEAN SHIPPING CO. LTD.	defendant

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Coram: Li, J.

Date of Judgment: 10 December 1975

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DECISION

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1. This is an appeal on only one point viz: whether the Court has jurisdiction to extend time to file and serve a defence where a time limit to do so has been embodied in a consent order. The subject matter of the claim is irrelevant. But a short account of the steps taken in the proceedings will give the background of the point involved.

2. The Statement of Claim was issued on the 5/6/75 and served on the defendant. On the 24/6/75 the plaintiffs issued an order 14 summons for summary judgment. This summons was heard before Registrar Bannett on the 29/7/75 when a consent order was made in the following terms:

"UPON HEARING Counsel for the Plaintiffs and Queen's Counsel for the Defendant and BY CONSENT IT IS ORDERED that unless the Defendant pays the sum of HK$210,000,00 to their solicitors Messrs. F. Zimmern & Co., and that such sum is placed on deposit in the joint names of Johnson, Stokes & Master and F. Zimmern & Co., within seven days of the date hereof, the Plaintiffs may enter judgment against it for the amount claimed with interest, if any, and costs.

	AND IT IS BY CONSENT ORDERED that if that sum be so paid deposited:-
	The Defendant shall have 14 days in which to serve its defence;
	The Plaintiffs shall have 14 days thereafter to file and serve their Reply if any;
	The Plaintiffs and Defendant do respectively within 14 days after close of pleadings serve on each other a list of documents and file an affidavit verifying such list;
	There be inspection of documents wihin 7 days of the service of the lists and filing of the affidavits; and
	This action shall be tried at the Supreme Court of Hong Kong before a judge without a jury on dates to be fixed in consultation with Counsel's diaries, the estimated length of the trial being 5 days.
	AND IT IS FURTHER ORDERED that the costs of this application be costs in the cause.
	Certified fit for Counsel.
	Dated the 29th day of July, 1975."

Payment of the sum specified was made in accordance with the terms of the said consent order. However, no defence was filed within the time limit prescribed. Instead the defendant took out a summons on the 8/10/75 and applied to the Registrar for an extension of time to file its defence. This summons was heard by Registrar Oliver who, on the 29/10/75 extended the time. Subsequent to this the defendant filed its defence pursuant to the order. The plaintiffs now appeal against Registrar Oliver's order and ask the defence so filed to be struck out.

3. Learned counsel for the plaintiffs contends that once a time limit has been embodied in a consent order the Court has no jurisdiction to intervene so as to rewrite an agreement between the parties. The case of Ip Cheng Tong v. Liu Yiu (1972) H.K.L.R.46 is cited in support of this proposition. In that case the defendant was required to pay a sum of money into Court within a time limit as a condition for leave to file his defence by virtue of a consent order. The defendant neglected to pay within time and was in fact 3 days out of time and the payment was refused by the Court staff. When the issue was an appeal before the Full Court Blair-Kerr J. said:

	"As counsel for the plaintiff said, the parties did not leave it to the court to fix the time limit for payment of mesne profits. They themselves fixed the time limits in the clearest possible language; and if it is to be said that the court should intervene if a party is 2 or 3 days late with his payments, what if he is 3 months late? Where is the court to draw the line?
	In seeking a consent order, what the parties were, in effect, saying to the court was this: We have agreed that the defendant shall have leave to defend the action provided he pays into court ..... $460 per month in advance commencing on 1st August. He must file a defence within 14 days; but there again, the validity of this step in the action is conditional upon his making the payments as set out in this order."

Citing the case of Purcell v. F.C. Trigell Ltd. (1970) 3 W.L.R. 884 in the course of his judgment at p.53 he said:

"Purcell v. F.C. Trigell Ltd. was an action for personal injuries. There were 2 defendants viz. the plaintiff's employer, Trigell Ltd., and one Davies, who was working with Purcell and who was said to be responsible for the accident. There was a long delay by the defendants in putting in their defence. Eventually to gain further time, their solicitors delivered what was called a "blanket" defence. The plaintiff obtained an order for interrogatories on the defendants to be answered with in 14 days. They were not answered. The plaintiff then took out a summons asking for judgment on the ground that the defendants had not complied with the order for interrogatories. The parties then agreed upon a consent order in the following terms: -

'It is ordered that as agreed the defence of both defendants be struck out unless answers to the interrogatores ordered be delivered within 10 days .....'

Trigell Ltd. answered their interrogatories; but Davies did not answer his interrogatories properly. There was further correspondence between the solicitors and the defendants' solicitors were given further time; but they still failed to answer all the interrogatories. Therefore the plaintiff continued with his summons for judgment because of the default of the defendants in complying with the consent order; and the registrar ordered judgment to be entered accordingly."

He also referred to a judgment by Huggins J. in the case of F. Hoffmann-La Roche & Co. v. T.W. Wu & Co. (Hong Kong) Ltd. (1966) H.K.L.R. 306 in which Huggins J. said at p.308:

"..... it seems clear that the ratio decidendi of the Australasian Automatic Weighing Machine Case (1891) Weekly Notes 170 is that by altering a consent judgment the Court would indirectly be altering the terms of the contract of which the judgment was evidence. Thus whilst in general it is possible to extend the time limited by a judgment or order it would appear that such a time limit in a consent order cannot be extended except by consent of both parties."

4. It is observed however in all these three cases what was required to be done within time: (be it payment into Court, answering of interrogatories or filing of affidavits) was made a condition precedent in the consent orders.

5. In the present case the condition precedent of payment had been complied within the prescribed time. What had been done out of time is something not as a condition precedent but as an agreement between the parties viz: to file a defence in time. I do not think that the cases cited by learned counsel for the defendant are directly on the point. However, the example he gives is typical. He says that time and again solicitors for the parties have agreed to filing of documents within a certain time. When one party cannot file the documents within the time agreed there is nothing to prevent that party to apply to Court for an extension of time despite the refusal of the other party to consent to extend time. I am of the opinion that there is substance in this example.

6. I am of the opinion that the present case is different in fact from the Ip Cheng-tong's case and that the Court has jurisdiction to exercise its discretion to extend the time where the time limit in this instance is not a condition for leave to file the defence.

7. For these reasons the appeal is dismissed, Registrar Oliver's Order affirmed and that the defendant be allowed to serve defence out of time on plaintiffs. The costs is to be awarded to the defendants (respondents) with Certificate for Counsel.

Representation: