Henry T. Uy v. Kam Yue Restaurant (A Firm)

DCCJ002525/1977

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

CONSOLIDATED ACTIONS NOS. 2208, 2209 AND 2525 OF 1977

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ACTION NO. 2208 OF 1977

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ACTION NO. 2209 OF 1977

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ACTION NO. 2525 OF 1977

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Coram: A.L. Leathlean, D.J.

Date of Judgment: 6 December 1977

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RULING

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1. For the purpose of the ruling which I am about to make I think that it is well that I trace some at least of the history of the matter which render a ruling necessary.

2. The writ in Action No. 2208 of 1977 was filed on March 26th. It was served on March 30th. Thus, the last day upon which a defence could be filed was April 6th: Rule 21(1) of the District Court Civil Procedure (General) Rules (hereinafter referred to as "the Rules"), which reads as follows:

"21.(1) A defendant who disputes his liability for the whole or part of any claim or intends to set up a counterclaim shall, within eight days of the service of the writ upon him, file at the registry out of which the writ has been issued a defence or counterclaim, as the case may be, signed by himself or his solicitor or counsel and setting out his full postal address and, where it is signed by his solicitor or counsel, the full postal address of his solicitor."

The defendant's solicitors sought to file a defence on April 26th. That document bears an endorsement signed by the plaintiff's solicitors to the effect that they consent to it being filed out of time. The endorsement is dated April 15th. Even if the endorsement may be treated as a notice for the purpose of Rule 21(2) of the Rules, which reads as follows:

"21. (2) The period of eight days specified in paragraph (1) may be extended for a further period not exceeding twenty-one days upon the defendant filing, within the period of eight days, a notice signed by the plaintiff consenting to the extension of time",

it is immediately apparent that the endorsement was not tendered within 8 days of March 30th when the writ was served, as, under Rule 21(2) it had to be in order that the period of 8 days specified in Rule 21(1) might be extended by a maximum of 21 days. However, the defence, complete with the endorsement, was accepted and filed. In the circumstances it might have been argued that, the endorsement bearing date later than April 6th, it was obligatory for the defendant's solicitors to apply to the court for an extension of time within which to file the defence, by virtue of Rule 38 of the Rules, which reads as follows:

"38. The Court may, whether before or after the time limited for the filing of any pleading and whether such limitation be by these rules or by the Court, extend the time allowed therefor on such terms as it may think fit."

No such application was made. There might also have been argument as to the effect of the filing of the defence and the endorsement upon it in the circumstances, as well as to whether it is now too late for the defendant's solicitors to apply for leave to file a defence out of time. However, the parties do not wish to raise any of these points, none of which is, in my view, one which it is encumbent upon me to raise. Be that as it may, I apprehend that the effect of Rule 21(2) of the Rules may be to give a defendant a right to file a defence within 29 days provided that he files the requisite notice in time, but that if, by consent, the notice is filed out of time, while a defendant would have no right to file a defence out of time, a plaintiff, for whose benefit the rule clearly enures, would be taken to have waived the protection which it affords him (vide Wilson v. McIntosh⁽¹⁾, Corporation of the City of Toronto v. Russell⁽²⁾, Grimble and Co. v. Preston⁽³⁾, Holloway v. Cooke Property, Ltd.⁽⁴⁾, D. and J. Evans Property, Ltd. v. City of Hawthorn⁽⁵⁾, and Mercantile and General Re-Insurance Co., Ltd. v. Groves⁽⁶⁾).

3. On July 8th, within 3 months of the dates upon which the defences in Actions Nos. 2208, 2209 and 2525 of 1977 were filed, the plaintiff's solicitors filed an application that those three actions be consolidated. The main purpose of consolidation is, of course, to save costs and time (vide Supreme Court Practice, 1976, 4/10/1). On July 14th, still within 3 months of the dates upon which the defences in Actions Nos. 2208, 2209 and 2525 of 1977 were filed, they formally applied that Action No. 2208 of 1977 be set down for trial. They made no formal application in time that Actions Nos. 2209 and 2525 of 1977 be set down for trial.

4. Rule 31(2) of the Rules reads as follows:

"(2) Where no application to fix a date for the hearing of an action is made under rule 24 within three months from the date on which the defence or counterclaim was filed the Registrar shall strike out the action from the Register of Civil Actions."

5. The question before me is, in effect, whether, application having been filed on July 8th that Actions Nos. 2208, 2209 and 2525 of 1977 be consolidated, the application filed on July 14th that Action No. 2208 of 1977 be set down for trial operated as a notional application that Actions Nos. 2209 and 2525 of 1977 also be set down for trial. In my judgment, in the particular circumstances, it did, and the Registrar was not required to strike out Actions Nos. 2209 and 2525 from the Register of Civil Actions. Of course, my decision in the matter, which has not, so far as I am aware, been decided before, is not binding upon any other court, and solicitors might, therefore, be well advised to take the precaution of making formal application in time in each and every action in which they act for a plaintiff that it be set down for trial.

6. The costs of this application are to be the plaintiff's, to be taxed on the upper scale, in Actions Nos. 2208 and 2209 of 1977. I will, if desired, hear argument as to the costs of the application in Action No. 2525 of 1977 on a date to be appointed by the Registrar.

7. Dated this sixth day of December, 1977.

Representation:

(1) 1894 A.C. 129

(2) 1908 A.C. 493

(3) 1914 1 K.B. 270

(4) 1963 Victorian Reports 229

(5) 1967 Victorian Reports 212

(6) 1973 3 All E.R. 330