Banca Intesa S.P.A. Hong Kong Branch v. Forward Industry Ltd

HCA1222/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1222 OF 2004

BETWEEN

HCA143/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 143 OF 2005

BETWEEN

_____________________

Coram:  Deputy High Court Judge L Chan in Chambers

Date of Hearing:   9 November 2005

Date of Delivery of Decision:  9 November 2005

D E C I S I O N

1.This is a hearing of two summonses which were issued by the defendants in these two actions on 26 October 2005.  One of them was issued by the defendant, Forward Industry Limited, in HCA 1222/2004 (the first action) to set aside a summary judgment given by me on 29 September 2005 in its absence.  The second summons was issued by the defendant, Mr Yao Chuanrui, in HCA143/2005 (the second action) to set aside my order also made on 29 September 2005, dismissing his application to set aside a default judgment entered against him.  I dismissed his application also in his absence.

2.The reasons for these decisions have already been given and I will not repeat them here.

3.Yesterday, at 4.53 pm, the fax machine of this court received a letter from one Yao Hongjun (“姚紅軍”) who claimed to be a director of Forward Industry.  Mr Yao Hongjun alleged in the fax that Forward Industry had authorised Mr Yao Chuanrui, another director, to handle this action for it.  He learnt it yesterday that the hearing of the summons issued by Forward Industry would take place this morning.  However, Mr Yao Chuanrui was engaged in a conference in Beijing and could only come to Hong Kong at the end of this month.  Mr Yao Hongjun is a mainland resident and cannot come here to appear for Forward Industry this morning.  He thus asked for an adjournment of this hearing. 

4.Apart from this letter, there is nothing else to support this informal application to adjourn.  There is also no explanation on why solicitors could not have been engaged to act for Forward Industry. 

5.The plaintiff’s solicitors have also received a copy of this fax yesterday afternoon.  They oppose this application to adjourn.  In the premises, I would ignore this letter.

6.For the summons issued by Forward Industry in the first action to set aside the summary judgment, I have no jurisdiction to hear it.  Despite the absence of any representation of the defendant, I decide to proceed to hear this summons under Order 32, Rule 5(1) of the Rules of the High Court.  I also dismiss this summons for want of jurisdiction.  I order the costs of this summons be paid by Forward Industry to the plaintiff.

7.For the summons issued by Mr Yao Chuanrui in the second action, I have power under Order 32, Rule 5(4) of the Rules of the High Court to restore the summons for it to be heard again.  However, Mr Yao Chuanrui has not appeared today and is not represented by any solicitor.  I would not accept the letter I have referred to above as sufficient reason to justify his absence.  I therefore order under Order 32, Rule 5(1) that this summons be heard this morning despite his absence. 

8.I further dismiss this summons as no reasonable ground has been advanced to support it.  I further order that costs of this summons be paid by Mr Yao Chuanrui to the plaintiff.

Ms C Chong, instructed by Messrs Stephenson Harwood & Lo, for the Plaintiff

Defendant, in person, absent