South China Printing Co. v. Melvyn a. Hopper t/a Eursia Publishing Corporation

HCA014546/1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Hon. Hunter J. in Court

Dates of Hearing: 15th and 16th October 1985

Date of Delivery of Decision: 16th October 1985

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DECISION

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1. I have two applications before me. The first is the plaintiff's application to strike out the defence and counterclaim for non-compliance with an order of this Court of 5th June last. The other is an application by this defendant for an adjournment of the trial date fixed for this morning some months ago. Those applications came before me in Chambers yesterday. As it was impressed upon me then that to have dealt with them in Chambers would have been unfair to this defendant, because I would not have given him a proper opportunity of putting all relevant matters before me, I adjourned them into open Court this morning.

2. The situation revealed by the history of this litigation is lamentable. It is particularly lamentable in this jurisdiction, where if matters are properly handled, parties can have their rights adjudicated upon in a very reasonable period of time. The writ was issued on 1st December 1983. The claims are for the price of goods sold and delivered. The first claim is just over $34,000; the second claim $142,000. Initially the defendant acted in person and put in a defence and counterclaim which he drafted himself. That provoked an application by the plaintiff for judgment in respect to the first claim of $34,000, on the basis that that document disclosed no arguable defence. That application succeeded and judgment was given for that sum. That was back in August 1983. Next thing was that on 13th September 1983 a firm of solicitors came on the record for the defendant and made an application for that judgment to be set aside on the basis that an arguable defence could be put forward to the first of these claims. A draft amended defence was exhibited to the affirmation in support of that application. That resulted in two orders being made on 14th November, both by Master Boa. The first was an order setting aside the judgment conditional upon the judgment sum $34,140 being paid into Court in 14 days. That did not in fact happen. The defendant applied for more time; was given more time; and that sum was actually brought into Court on 30th January, some 2½ months after the order of November was made. On the same date, 14th November, Master Boa gave directions as to the future conduct to the action. The directions curiously did not embrace the filing of an amended defence, with a result that it was never in fact done. The home-made defence which was admittedly defective remained on the file. But he did direct that the defendant was to serve a list of documents in 14 days: and made orders for inspection: and directed that the action be tried by a judge alone and set down in the running list. In the following January/February it was duly set down. Nothing happened in respect to that order for discovery and inspection. The reason apparently was this. In another context, this defendant had retained another firm of solicitors and they had not been paid. On 10th April 1985, that firm launched proceedings against this defendant in the Victoria District Court, claiming a sum of over $37,000 for costs, in respect of something like 13 bills said to have been rendered. It is apparent that as long ago as October 1984, that firm was claiming to exercise a lien for their unpaid fee in respect of a number of documents.   I know nothing more about the situation than I have just described. I don't know what the work was; I don't know what the bills were; I don't know on what basis the lien was being advanced; and I don't know how the particular liens that were being advanced, related to the documents that were relevant to this dispute. The fact that this was a problem as long ago as October of last year, emerged from a telex that was produced to me in Chambers yesterday, in which the defendant was then telexing his then solicitors on the record, saying that the earlier solicitors were not prepared to release the files without payment.

3. It does not seem that anything at all has been done to resolve that problem since that date. I was told yesterday and again this morning that this defendant is prepared to pay $37,000 into the Victoria District Court in order to secure the discharge of that lien. That was put to me on the instructions by Counsel yesterday and again by different Counsel this morning. At the time I adjourned the matter yesterday, I adjourned it for evidence to be put before me, explaining exactly what had happened and exhibiting all the documents, particularly the telexs and correspondence, I was told yesterday, had been directed by this defendant to the initial firm of solicitors seeking the recovery of these documents. An affidavit was put in this morning. There are no documentary exhibits at all. I was told again on instructions that the files which were thought to exist were looked for last night and could not be found. There is not a word in that affidavit about having the means available to pay this sum into a District Court. As I say I have no details of the nature of this problem with the first solicitors at all. All I know is that proceedings were taken by that firm in April, and the defence was put in that month. I haven't been told about any other steps taken in that action. There is not a single piece of paper produced to me either by this defendant, his earlier solicitors or his current solicitors, advancing any claim to these earlier solicitors for the return of these documents, inviting them to formulate the lien or putting forward any explanation for this at all. I view with the greatest circumspection, the suggestion that $37,000 is now available to pay into the District Court. If it had been available at any time in the last 12 months, it could have been put up to discharge this lien and obtain these documents.

4. I brought the story of the action up to November. The next thing that happened, apart from setting down, was that an order was made on 1st January, removing the name of the second firm of solicitors from the record. The matter then came on for trial before this Court on 5th June. The day before the trial, the defendant's present solicitors came on the record. In those circumstances when the matter came before Deputy Judge Cruden on 5th June it was plainly in state when it could not properly be tried. There was on the file still the home-made defence which by common consent was insufficient. No discovery at all had been given by this defendant. Considering that this was a commercial case resisted by allegations that the work done was unmerchantable and unsuitable, with allegations of rejection and a substantial counterclaim for damages, it is one of those cases which is quite untriable without discovery. In those circumstances, a consent order was made for further directions. Since the action was listed for trial, I am told, and it is accepted, that the defendant was present in Court. The material parts of the order were:

What happened. The amended defence and counterclaim was served. This fixture was obtained. There has been no list of documents, no inspection and no payment of $2,500. As far as that is concerned, I am asked to accept that although the defendant was in Court, he did not understand that this was the sum which had been agreed, and that his solicitors and Counsel never explained that term of this order which they were then consenting to before Judge Cruden. I find that very difficult to accept. What happened about the lists of documents? The problem about them being in the possession of these first solicitors was that by that time very well-known to this defendant. The story presented to me on affidavit this morning is that in the light of that, he made a number of telephone calls in the first few days after the making of this order to that firm without result, and he then at the end of that month left the territory for England, and left the search for those documents with his staff with a nil return. Again, nothing effective was done by him. There is not a single document. There is not a single clear demand which the Court can see on these solicitors. They do not know that these documents are even required for the purposes of these proceedings as far as I' m aware. Nothing whatever has been done, on the information before me, by the defendant's present solicitors to obtain these documents.

5. It is in those circumstances that these two applications come before the Court. Three material parts of the consent order of 5th of June, have been wholly ignored. The explanation for that conduct which is advanced, is in my judgment demonstrably insufficient. Indeed the whole story of these documents for the last 12 months I have found increasingly incredible, the more I have tried to probe it and to understand it. It is now said by the defendant; I was not responsible for all this, this lien is being raised against me against my will, I could not do anything more effective about it, therefore, it would be a great injustice to me not to adjourn this case. I totally disagree. It seems to me that this situation has been brought upon himself by this defendant and has been handled with complete ineptitude, on the evidence that I have seen ever since October last year. Orders for discovery were made in November and ignored. A consent order was made last June and ignored. Upon this basis this litigation will go on forever. Upon this basis this defendant will be able to postpone the trial date inevitably without any sort of justification at all. In my judgment in this case, enough is enough. There is only one answer that I can see to the applications, and that is that I must refuse the application for an adjournment and direct that this defence and counterclaim be struck out.

Representation:

Mr. Ian Pennicott (M/s Denton, Hall & Burgin) for Plaintiff

Mr. Dixon Tang (M/s Ronald Ho & Co.) for Defendant