Tv Products (HK) Ltd v. Kalyanaraman Tiruvilwamala Ramachandran

HCA2438/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2438 OF 2006

BETWEEN

Coram: Deputy High Court Judge Carlson in Chambers (Open to public)

Date of Hearing: 15 December 2006

Date of Ruling: 15 December 2006

R U L I N G

1.The current order was one made by me on 8 December and, by oversight, the provision which allowed the defendant to withdraw $10,000 a week for his ordinary living expenses, did not make its way into the draft order and, in fact, the figure that was actually drawn up was one of $7,000 a week.  In the meantime what has happened is that the defendant has gone to India.  This is not, on the present material, a case of him trying to deliberately evade service.  I am told by Mr Chan, on instructions no doubt from his client, that, sadly, his father has died recently and, perfectly understandably, he has gone to India to be with his mother and console and be of general help to her.  So that is perfectly understandable.

2.The question then is whether I should dispense with service.   in the usual way these orders are made where it is clear to the court on good affidavit evidence that a defendant is deliberately evading service but, as I say, this is not that sort of case.  The order itself of course is of vital commercial importance to the plaintiff.  The matter still remains to be argued over because I have adjourned it to next Friday, 22 November, so it is still very much in the air as to final outcome, although I very much hope that this aspect of it will resolve itself. 

3.In relation to the mis-drafting of the first draft, I am told by Miss Lau - and I see correspondence to this effect - that as soon as the error had been drawn to their attention the plaintiff’s solicitors indicated they would be, of course, prepared to amend that order and a consent summons to that effect has been prepared.  So the defendant’s solicitors were well aware of the willingness of the plaintiff’s solicitors representing the plaintiff to accommodate them in the way that had always been intended when I made the order.

4.It seems to me, given the importance of this matter, and really there is no difficulty about it, the defendant was present in court; he knows the order that was made.  He was, of course, represented by solicitors and counsel.  Had he not gone to India no doubt arrangements would have been made to have served him and that would have been done successfully; I have absolutely no doubt about it.  And where there is no prejudice to him in the sense that he is not going to be taken by surprise in terms of the order itself, I think it is right, where he is now unavoidably in India and will be until sometime in January, that personal service ought to be dispensed with.  It is important that this order becomes an enforceable one if there ever were to be a breach - although the order is perfectly valid once it was pronounced by me on 8 December - it would ring pretty hollow so far as the plaintiff’s are concerned, if they could not enforce it by committal in an extreme situation.  So I am going to dispense with service.

5.Then we come to the question of costs.  I think I will give the parties an opportunity to address me on that now.

(Submissions on costs)

6.I take a slightly different view from everybody else here and I suppose it is my view that counts at the end of the day.  I think the plaintiff’s are open to an element of criticism, firstly, because they did not draw up the order properly and this is what has brought all of this about.  But they have indicated a willingness, straight away, once this matter was pointed out to them that they would consent to have that error corrected.  So far as the defendant is concerned, he has absented himself, as I say perfectly properly.  I take the view that once the summons was taken out Mr Chan says it was all done rather prematurely but I can understand the plaintiff would want this put rightly as soon as possible so that their order was made enforceable.  I am of the view that instructions could have been taken, for this to have been dealt with even before it got to me today.  So I think the proper order is to say there should be no order as to costs.  Each party will bear their own costs of this particular matter. 

Ms Tracy Lau, instructed by Messrs Haldanes, for the Plaintiff

Mr Selwyn Chan, instructed by Messrs Barlow Lyde & Gilbert, for the Defendant