William John Reidy v. Clinton Rowe and Another

DCCJ 3893 / 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3893 OF 2007

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Coram: His Honour Judge Thomas Au in Chambersb (open to public)

Date of Hearing: 14 March 2008

Date of Handing Down Decision: 14 March 2008

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DECISION

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1.This is the scheduled hearing date of the 2^nd Defendant’s appeal against the Master’s Order dated 12 February 2008 (perfected and filed on 21 February 2008) dismissing the 2^nd Defendant’s Summons dated 17 December 2007, seeking to set aside a default judgment entered against it on 9 October 2007.

2.However, for the reasons set out below, neither the 2^nd Defendant (Siprano) nor the Plaintiff (Mr Reidy) appears at the hearing today.

Background

3.The 1^st Defendant (Mr Rowe) is a director of Siprano, and he was authorized by Siprano to represent it in these proceedings pursuant to a board resolution dated 13 December 2007.

4.By a Notice of Appeal dated 26 February 2008 signed by Mr Rowe for Siprano, an appeal was lodged by Siprano against the Master’s decision.  The appeal was fixed to be heard today initially before Deputy Judge J Ko.

5.By a letter dated 5 March 2008, Mr Rowe wrote to Deputy Judge J Ko seeking to vacate the hearing date as he said he would be unable to attend it due to “extensive business travels and meetings abroad”.  In the same letter, Mr Rowe stated that the Mr Reidy had in fact not been notified of the appeal date.  Apparently the Notice of Appeal has not been served on Mr Reidy’s solicitors.

6.On 11 March 2008, Deputy Judge J Ko by a letter and an email asked Mr Rowe to clarify whether Siprano was abandoning its appeal.  It was further stated that if Siprano was not abandoning the appeal, it must serve the Notice of Appeal on Mr Reidy within 5 days after being issued pursuant to O. 58 r 1(3) of the Rules of the District Court (Cap 336). 

7.Up to today Siprano has not replied to Deputy Judge J Ko’s letter or email.

8.As Deputy Judge J Ko has not ordered the hearing be vacated, the matter comes before me today.

9.Given that no one appears on behalf Siprano, under my direction, my clerk called Mr Rowe through the mobile phone number stated in his letter dated 5 March 2008.  According to my clerk, Mr Rowe replied and said that he had by that letter already written to ask to vacate the hearing date and he was too busy to attend.  He also said that he would reply to Deputy Judge J Ko’s letter later.

10.Under my direction, my clerk also contacted the handling solicitor for Mr Reidy, Mr. William Giles.  According to my clerk, Mr Giles through his secretary confirmed that they were not aware of today’s hearing.

Discussion

11.It is the duty and responsibility of Siprano to pursue its appeal properly and with vigilance.

12.Pursuant to O. 58 r 1(3) of the Rules of District Court, the Notice of Appeal must be served on Mr Reidy within 5 days from the date of its issue (i.e., 26 February 2008).  Siprano through Mr Rowe was reminded of this requirement by Deputy Judge J Ko’s letter and email dated 9 March 2008.  This has not been done, and there is no explanation as to why this was not done. 

13.As such, in my view the appeal is irregular. Further, by not serving the Notice of Appeal on Mr Reidy and in the absence of any explanation as to why this was not done, it also shows that Siprano is not serious in pursuing the appeal.

14.Further, despite Mr Rowe’s letter dated 5 March 2008, the Court has not made any order to vacate today’s hearing.  Siprano is clearly aware of that, and it is its duty to appear today through its representative.  If Mr Rowe is not free as alleged, there are no apparent reasons (and no explanation is offered) as to why Siprano could not have authorized another representative to appear.  These again show that Siprano is not serious in pursuing the appeal. 

15.Moreover, other than being disrespectful to the Court, the failure to reply to Deputy Judge Ko’s letter and email is a further indication of Siprano’s lack of genuine interest in the appeal.  If it were serious about the appeal, it ought to have responded to Deputy Judge Ko’s inquiry promptly.

Conclusion

16.For the above reasons, I have come to the conclusion that Siprano is not serious and interested in pursuing this appeal.   I will therefore dismiss the appeal with no order as to costs.

Plaintiff, absent.

Defendant, absent.