Latimer Trading Company Limited v. Chan Kai Alias Chan Yiu t/a Woo Hing Lighterage Company and Others

HCA012690/1982

BETWEEN: -

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Coram:    The Hon. Mr. Justice Jackson-Lipkin in Chambers

Date of hearing:    3rd May, 1985

Date of delivery of decision:     3rd May 1985 at 4.10 p.m.

Appearances: (K.) Kwok for Plaintiff

(A.) Yau for 1st Defendant and 3rd Party

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DECISION

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1. This is yet another application by Mr. Chan Kai for the court's indulgence. As I pointed out to his solicitor this morning, I have been showering indulgences on Mr. Chan Kai, like one of the priors in a tale by Chaucer. I do not propose to shew any more indulgences after to-day. I have, however, heard this man on his affirmation this afternoon, and I have seen him answer a few questions in cross-examination before it was stopped. He is obviously not a man of the highest degree of intelligence. He appears to run a one-man firm with a small staff. I am not happy with the explanation he has given in support of his application for further time to obey an Order, which was most carefully explained to him by me through the medium of an Interpreter, and most carefully explained to him in his own tongue by Counsel, after I rose. However, I am prepared to make one last indulgence in his favour, and it is this: If he lodges a third affirmation of explanation in obedience to my Order of the 28th of March, I will permit such to be served and filed in addition to those of 17th April and of today, and consider that as a sufficient compliance with my Order if, but only if, the third one covers all the "missing ground": That is to say, if the cumulative effect of the three affirmations is of full compliance with my Order. But my Order will be that, unless he so does, by 4.00 p.m. on Friday the 10th of May, and unless, by that time, he shall have paid to Messrs. So and Karbhari the agreed sum of $5,000 by way of costs, Judgment will be entered for the Plaintiff forthwith and without further Order.

2. However, should he comply with both those conditions, that is, the third, final and complete explanatory affirmation, and the payment of costs, he will be at liberty thereupon to serve the final version of the re-amended defence and counter-claim, and time for such service will be enlarged accordingly to a time for service, which I will specify as 4.30 p.m. on Friday 10th May. So that, if Mr. Chan complies by 4 o'clock, his solicitors have half an hour within which to serve those documents which have already prepared ready for service, and it will not cause any inconvenience.

3. I deal with the cost of today on a very high scale because of the appalling inconvenience caused to the Plaintiff, and his solicitors and Counsel quite unnecessarily, and as a mark of my disapproval of the well-nigh contumelious behaviour of this man, and of his failure to co-operate with his solicitors or with the court.

4. I should make it clear that the $5,000 is a figure that the two sets of solicitors here have reached in common, without prejudice as to what would be allowed above that figure on taxation in due course. What was originally sought by the Plaintiff's solicitors was a higher figure. What was originally attempted to be agreed by the 1st Defendant and 3rd Party's solicitors was a much lower figure; but, upon reflection, they thought better of it, and they themselves, that is Messrs. So & Karbhari, through Counsel advanced the figure of $5,000. Now it is possible that, when this matter goes to taxation at the end of a trial, a figure in excess of $5,000 might be allowed. If that be the case, then the 1st Defendant and 3rd Party will have to pay that additional sum, if there is one, to the Plaintiff's solicitors. I say that by way of explanation so the Taxing Master may know in due course what is full extent of this order. The Taxing Master is directed to allow those costs on a solicitors and own client basis.

5. Now, gentlemen, there is one other thing. To-day, when the question of the Particulars were raised, my acting Clerk informed me that there is nothing within the court file, so what I have done, through her, is to obtain from those who instructed each of you, copies of the documents. What they are is these: A letter from Messrs. Siao and Wen of the 4th February to H. M. So & Co, requesting the Particulars, and a letter from H. M. So & Co., as they then were, dated the 1st March;(it was quite clearly referring to the letter of 4th ultimo although at first "4th instant", which means, of course, 4th ultimo.): That contains the Particulars, and those are now going to be put into the court file. If this ever come to the trial, I trust that the solicitors for the Plaintiff will ensure that, in the judge's bundle, those two documents go in in their proper place.

Representation: