Schenker (H.K.) Ltd. v. Teneret Ltd. and Another

HCA007768/1995

1995 No. A7768

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

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Coram : The Hon. Mr. Justice Keith in Chambers

Date of Hearing : 3 November 1997

Date of Delivery of Judgment : 3 November 1997

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J U D G M E N T

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1. I propose to extend the Plaintiff's time for filing the Notice of Appeal. The Notice of Appeal was filed only one day late, and the reason why it was not filed in time was because the Plaintiff's solicitor who attended the hearing was uncertain about the order which had been made, and he only knew what order had been made when the court file had been inspected. No prejudice has been caused to the Defendants by the failure to file the Notice of Appeal a day earlier, and the appeal had an excellent chance of success. Indeed, I have decided to allow it.

2. What happened was that in August 1996 the Plaintiff filed a summons seeking summary judgment under Ord. 14 against the 2nd Defendant. In the alternative, the summons sought the striking out of the 2nd Defendant's Defence and judgment against the 2nd Defendant in default of defence. That summons had a time estimate of 15 mins. It was due to be heard on a date in October 1996. On that occasion, the hearing of the summons was adjourned to a date to be fixed because the time estimate had increased to two hrs. A new date for the hearing of the summons, though, was not fixed. The reason for that was that, for the time being, the Plaintiff did not want to proceed with its summons against the 2nd Defendant. When the Plaintiff eventually decided to restore the summons, it also decided to seek similar relief against the 1st Defendant. Accordingly, it applied for leave to amend the summons to seek that relief. That application was refused, and this appeal is from that refusal.

3. I do not know why the master refused the application. It may be that he thought that the summons should not be amended because of delay. I can understand his concern, but the effect of the dismissal of the application for leave to amend the summons is that there will now have to be two hearings instead of one to decide whether the Plaintiff should have summary judgment against the Defendants and whether the Defences should be struck out.

4. It may be that the master decided to dismiss the summons because he thought that the proper course for the Plaintiff to have taken was to file a separate summons against the 1st Defendant, and then to apply for the hearing of the two summonses to be consolidated. I do not think there was anything to choose between the two courses, and I do not think that the Plaintiff's summons should have been dismissed on that ground. Neither of the Defendants opposed the relief which the Plaintiff sought from the master, and I see no reason why the Plaintiff should not have been granted an order in the terms of the summons (save as to costs).

5. Accordingly, the order I make is that the Plaintiff's time for filing the Notice of Appeal be extended until 24th October (which was the date when it was in fact filed), that the appeal be allowed, that the order of the master be set aside, and that there be an order in the terms of the Plaintiff's summons filed on 25th September, save that for the word "hereto" in para. (2), there be substituted the words "to the Plaintiff's summons filed on 25th September 1997", and save that para. (7) be excluded. I shall hear from the parties as to what order for costs should be made both here and below.

(Brian Keith)

Judge of the Court of First Instance

Representation:

Mr. Frederick Wong, of Messrs. Daniel Lam & Co., for the Plaintiff.

1st Defendant absent.

Mr. Shum Wing Hong, director of the 2nd Defendant.