Arnhold and Co Ltd v. China Marine Investment Co Ltd
Read the full judgment text of HCA 2174/1971 on BabelCite. This High Court CFI judgment.
1. This is an application by the plaintiff under Order 24 rule 16(1) of the Rules of the Supreme Court that the defence and counterclaim be struck out and that judgment be entered for the plaintiff for the amount claimed and costs on the ground that the defendants had failed to comply with a consent order made on the 12th January 1972 and a further consent order made on the 11th October, 1972.
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HCA002174/1971
IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION -----------------
----------------- Coram: Mr. Registrar Jones in Chambers. Date of Judgment: 8th January 1973. ----------------- DECISION ----------------- 1. This is an application by the plaintiff under Order 24 rule 16(1) of the Rules of the Supreme Court that the defence and counterclaim be struck out and that judgment be entered for the plaintiff for the amount claimed and costs on the ground that the defendants had failed to comply with a consent order made on the 12th January 1972 and a further consent order made on the 11th October, 1972. 2. The writ was issued on the 23rd September 1971 in which the sum of $61,768.98 is claimed for goods sold and delivered. An appearance was entered on the 29th September 1971 and a defence and counterclaim was filed on the 7th October 1971. A defence to the counterclaim was filed on the 16th November 1971 and a reply to defence to counterclaim was filed on the 21st December 1971. The court order made on the 12th January 1972 was upon the summons for directions issued by the plaintiff. At the hearing an order was made for mutual discovery upon oath both parties to serve their list of documents within 14 days. The plaintiff complied with this order ...(illegible) defendant did not. No steps were taken by the plaintiff until they issued a summons on the 3rd October 1972 applying for the same order which is applied for in the present summons. At the hearing of the earlier summons on the 11th October 1972 an order was made by consent for the defendant to file a list of documents within 5 days. However this order was not complied with by the defendant. 3. In an affidavit in reply to this summons Mr. Robertson, the defendant's solicitor says that he completed the defendant's list of documents but due to pressure of work in his office he was unable to ask the defendant's managing director to make the supporting affirmation until the 19th October 1972 which was of course after the time limited by the order of the 11th October 1972. As a result Mr. Robertson sent the list to the plaintiff's solicitors requesting their consent to filing the document out of time. However the plaintiffs instructed their solicitors to refuse to consent and to proceed to apply for judgment. The defendant's solicitor in reply said that they would make an application for a further extension of time to file their list of documents. 4. Order 24 rule 16(1) of the Rules of the Supreme Court provides that 'If any party who is required by any of the foregoing rules, or by any order made thereunder, to make discovery of documents or to produce any documents for the purpose of inspection or any other purpose fails to comply with any provision of that rule or with that order, as the case may be, then, without prejudice, in the case of a failure to comply with any such provision, to rules 3(2) and 11(1), the Court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly.' 5. Accordingly having regard to the wording of the order it is clearly discretionary as to what order should be made. Mr. Bokhary in his submission for the plaintiff complained of the delay by the defendant ...(illegible) I do not consider that any great weight can be attached to this for they themselves took over 8 months before they made the first of their two applications under Order 24 rule 16(1). 6. However Mr. Rokhary in his argument relies mainly upon the case of Ip Cheng-tong v. Liu Yiu 1972 H.K.L.R. at page 46 to support his proposition that as the defendants have been in breach of two consent orders they can no longer file their list of documents without the plaintiff's consent. In that case a consent order was made giving the defendant leave to defend conditional upon the defendant paying into court within 14 days all arrears of rent and mesne profits in the sum of $1,380 and thereafter $460 per month in advance, with consequential orders as to service of pleadings. The defendant complied with the order by making payment of the sum of $1,380 after which the relevant pleadings were served, but did not comply with the order to make the first payment of $460. As a result the plaintiff applied to sign judgment. An appeal from the dismissal of this summons was allowed by the Full Court. It is abundantly clear from this decision that the agreement reached between the parties was that the defendant should be at liberty to defend provided that he complied with the condition as to payment of the mesne profits. The case is therefore distinguishable from the present which imposes no conditions in the event of the consent order not being complied with. There is no automatic right for the plaintiff to apply to enter judgment, for as I have said a discretion is vested in the court under Order 24 rule 16(1). In fact the consequences of default if the consent orders were not complied with were not provided for. Upon the authorities I accept that an order made by consent cannot be extended or altered without consent with the result that I am unable to make any order with regard to the filing of the defendant's list of documents. I agree with Mr. Taylor who appeared for the defendant that such a draconian approach as is envisaged by the plaintiff should not result from the defendant's fault in merely failing to file their list within the time stipulated unless a condition to this effect was ordered. 7. There are upon the pleadings matters of substance in dispute between the parties upon which the defendant is entitled to be heard so that it is not a case where summary judgment could be obtained under Order 14. I am of the opinion that the plaintiffs have taken an unreasonable attitude towards the defendants upon their omission which should have been resolved by a measure of give and take obviating the necessity for this application. The plaintiffs would have been well advised to have given their consent to the defendants to file their list of documents out of time and then proceed to set the action down for trial. 8. It is pertinent to observe that the order made on the 12th January, 1972 required the action to be set down for trial within 35 days after close of pleadings but the plaintiffs have taken no steps to do so. 9. In the circumstances of this case I do not consider that it is necessary for any order to be made with the result that the summons will be dismissed. There will be no order as to costs. 10. Dated this the 8th day of January, 1973.
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