Esprit De Corp and Another v. So Ping Tan t/a Joyce Shoes & Handbad Co

HCA004392/1984

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

Coram: Hon. Mantell, J. in Chambers

Date of hearing: 9th October 1981

Date of delivery of judgment: 9th October 1984

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JUDGMENT

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1. On 6th August 1984 before me the plaintiffs made application by summons for judgment to be entered in terms by reason of the defendant's default in filing and serving a defence. The defendant was not represented on that occasion but he indicated that he did wish leave to defend and sought my leave for an extension of time. I granted an extension of time to the 14th September, that is to say, 3 days after the beginning of term, and I told the defendant on that occasion that he would not be able to file his defence or serve it before the beginning of term so that although he had time to consider his position and to prepare the necessary document, he would not be able to file or serve except on those 3 days. He did understand what I said to him because he told me and I accept that on the 12th, 13th and 14th September he attended at the Registry where he was assisted in the completing of the acknowledgment of service, and he took with him on that occasion what he considered to be a defense, but it was not accepted by the Registry as being in due form. I do not know in what respect it was inadequate. All I do know is that he was not successful in filing it, nor did he serve it. I had made on that occasion an "unless order" to the effect that if the defence had not been served by the 14th September, the plaintiffs were to have judgment in terms of their summons save that on that occasion the summons was amended by deleting paragraph 7 of he relief claimed.

2. Not only did the defendant have difficulties at the Registry, so did the plaintiff. A clerk in the plaintiffs' office, as I understand, attended at the Registry after the 14th September with a draft order which had been, I dare say, properly prepared but which had not been submitted to my clerk for approval and the Registry therefore refused to enter judgment. That at least is as I understand their decision to have been, and consequently, not perhaps appreciating the Registry's reason for declining to enter judgment, Miss Liu, out of an abundance of caution, took out a further summons, again seeking judgment under Order 19, and that is how the matter comes before me today.

Since it happens that my earlier Order has not been, in the event, perfected, and since I am now prepared to treat what has been said to me by Mr. So, unrepresented as he is, as an application for a further extension of time in which to file and serve his defence, I am able, I believe, to do justice to the case by allowing him a further short period, and I am prepared to enlarge the additional period of time which I previously gave him in which to file and serve a defence by a further 7 days as from today, that is, to avoid any misunderstanding, I give leave for the filing and serving of a defence, up to and including 17th October this year. But I am going to make a further unless order. It is a fresh order and it replaces the order which I previously made. Unless the defendant files and serves his defence on or before the 17th October this year, there will be judgment for the plaintiffs in the terms of their summons dated the 30th July 1984 save that paragraph 7 of the relief sought in that summons should be amended to read "an inquiry as to additional damages in accordance with section 17 (3) of the Copyright Act, 1956". That differs from the order I previously made in that that item of relief was previously omitted, but I am persuaded by Miss Liu that although it may be unlikely that any damages will accrue under that heading, it is not really possible to say at this stage, that is, before any discovery has taken place. It is also part of my order that unless the defence is filed and served on or before the 17th October, the plaintiff will have costs, both of the application made before me on the 6th August and, since I have treated this as an application by the defendant to enlarge time, of today also. On reflection I think I am inclined to say that they should be the plaintiffs' costs in any event, so I don't think that they need to be part of the unless order. I modify, therefore, my order as stated by saying it is not part of the unless order, and that the costs of the hearing on the 6th August and the costs of today are to be the plaintiffs' in airy event.

Representation:

Miss Alison Liu of Fairbairn & Kwok for Plaintiffs

Defendant in person - present