Edward Keller Ltd v. Multi-comm Ltd

HCA 1269/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.1269 OF 1999

__________________________

__________________________

Coram: The Hon. Mr. Justice Waung in Chambers

Date of Hearing: 14th June 1999

Date of Delivery of Judgment: 14th June 1999

__________________

JUDGMENT

__________________

1. This is an appeal by the Defendant from the order of the Master whereby the Master granted leave to the Plaintiff, the permission to delay the service of the Reply and Defence to Counterclaim until after the Defendant has served its Further and Better Particulars of its Defence and Counterclaim.

2. The dispute is over the timing of the Reply and Defence to Counterclaim.  The appeal was brought by the Defendant to this court because the Defendant says that is just an ordinary case, no different from everyday cases that come before the court, where the normal rule is that party must plead according to the timetable laid down by the Rules of the Court and not seek to delay it by asking for the delivery of the Further and Better Particulars of the pleadings before serving its appropriate pleadings.

3. The fact of this case is really quite simple.  The Defendant is a supplier of systems to the Plaintiff of a automatic car number recognition system.  The sale consists of the supply of the necessary hardware and software including its installation.  The price agreed was $149,500 with a deposit paid of $44,850 being 30% of the purchase price.  The agreement was to the effect that the supply and the delivery of the system, its installation as well as testing are to be done by the end of February 1998.

4. What happened was that the deposit was paid but there had been a dispute between the parties arising out of the Plaintiff says on the one hand, the Defendant had failed to deliver the parts and install the system and therefore asking for the return of the deposit, while the Defendant says that it was the Plaintiff who asked the Defendant to defer the delivery because it was unable to have the site ready.  The request was made by the Plaintiff to Defendant to defer the delivery until May.  There was an agreement to pay an extra 10% deposit.  The Defendant had agreed to the request.  Then when the Defendant delivered the parts and tried to go to install, the Defendant was refused entry and also the Defendant was unable to recover the component parts delivered to the Plaintiff.

5. In relation to the Plaintiff’s refusal to put its Reply and Defence to Counterclaim, the Plaintiff relies on four sets of Request for Further and Better Particulars it has made as its grounds for its delay of the delivery of its pleading of Defence and Counterclaim.  The first set of Request is this.  In relation to para.4C, the allegation is that the Plaintiff informed the Defendant that the Plaintiff was not able to possess the site in question and therefore delivery of certain items was no longer required to take place in the month of February 1998.  The request was whether the Plaintiff allegedly informed the Defendant orally or in writing to and if orally state the names of persons involved of the Plaintiff and the Defendant and if in writing identify the document.  The question in relation to this request under para.4C is really this, whether in the words of O.18 r.12 para.5 the Plaintiff is unable to plead the Reply and Defence to Counterclaim, in these circumstances, having regard to what is pleaded in para.4C of the Defence and Counterclaim.  I do not think so.

6. The meaning of para.4C is clear.  The Plaintiff must know its own case.  The Plaintiff is plainly able to plead.  It is said to Mr. Yeung on behalf of the Plaintiff that it is desirable that the Plaintiff should have the Further and Better Particulars first before pleading to it.  It is always desirable to have more Further and Better Particulars.  But that is not the point.  The point is whether the Plaintiff is able to plead without these Further and Better Particulars.  If the Plaintiff is able to plead like in both cases, then the Plaintiff should not be allowed to delay its time of pleading until after the receipt of the Further and Better Particulars.  That is what the whole case comes down to and I have no difficulty in coming to the view that this is just one of the ordinary cases.

7. The same can be said of para.4D’s request.  Para.4D relates to the pleading of the Defendant alleging that it agreed with the Plaintiff on the postponement of the completion of the system, with extra payment of another 10% deposit.  The question for the Plaintiff is, did they agree the payment with 10% extra deposit or did they not.  There is no difficulty in understanding that pleading and there is no difficulty in the Plaintiff being able to plead.  Again, I see no reason why there should be a departure from the usual practice of requiring a party such as the Plaintiff to plead its Reply and Defence to Counterclaim before the delivering of the Further and Better Particulars by the Defendant.

8. Next, we go to request under para.4E.  There the pleading is that the Plaintiff took delivery of the site and informed the Defendant that it had taken delivery of the site.  Again, this is a simple plead even though the timing and the persons make the information were not given.  This does not prevent or disable the Plaintiff anyway from pleading to it.  Again, I see no reason for delaying the pleading by reason of the content of para.4E.

9. Finally, we turn to para.6 of the Defence and Counterclaim.  There, the allegation of the Defendant is that the Plaintiff refused the Defendant entry into site to perform installation and to complete the system after items were delivered to the site.  What the Plaintiff has to plead is either the Plaintiff had refused the Defendant’s entry or had not.  It is a pleading which is easy to understand and the Plaintiff is plainly able to plead to it.  I also come to the same conclusion as before.

10. Mr. Yeung in his spirited defence of the Plaintiff’s obviously wholly unreasonable demand, insisting upon particulars before the Reply and Defence to Counterclaim, relied on the case of Shippam and the case of Bruce v. Odhams.  Both of them turn on the particulars facts of the case and afford no assistance to me in this particular situation.  I see this case as no different from the many many of cases which regularly come before the Court.  The invariable rule is to plead to it before particulars are given, rather than seeking to delay the time of pleading to it.  The particulars of pleading of course serve its function in due course.  But the lack of Further and Better Particulars, however, should not be an excuse a party such as the Plaintiff to delay serving in its orderly time as laid down by the rules, the pleading which ought to be put in.

11. I see no proper basis here to make an extraordinary order of Further and Better Particulars before Reply and Defence to Counterclaim.  I, therefore, allow the appeal, reverse the Order of the Master and order that the Plaintiff do serve its Reply and Defence to Counterclaim within 7 days.  The costs of the appeal and of the application before the Master must be to the Defendant.

(William Waung)

Judge of the Court of First Instance

Miss Annie Lai instructed by M/s Ng & Co for the Appellant/Defendant

Mr. M.T. Yeung instructed by M/s Tsang Chan & Woo for the Respondent/Plaintiff