Collier Petty Ltd v. Wong Ching
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IN THE COURT OF APPEAL 1987, No. 2066
__________________ BETWEEN
__________________ Coram: Hon. Cons, V.-P., Fuad & Clough, JJ.A. Date of hearing: 9th October, 1987 Date of delivery of judgment: 9th October, 1987 __________________ JUDGMENT __________________ Cons, V. - P : 1. On the 3rd June this year Collier Petty Limited, which is a company dealing inter alia with the management of buildings, issued a Writ against the Defendant for the recovery of maintenance charges in respect of some twenty-eight flats which she owns in the Han Palace Building, North Point. There was filed in answer a long and undated rambling defence, which alleged in particular first, that one of the flats had he en sold, and second, that the charges on others had been paid by her tenants. 2. On the 3rd August those acting for Collier Petty Limited served notice demanding particulars of the date on which the first property was sold, and various other particulars, including the names and addresses of the tenants, with regard to the other flats. No answer was received. 3. By reason of Rule 38A of the District Court Civil Procedure (General) Rules, Collier Petty Limited were entitled and did apply to the District Court. Paragraph 4 provides that a judge may, if the notice has not been complied with and he is satisfied that the party requiring the particulars is thereby prejudiced, order the further or better particulars to be filed and stay all proceedings until that order has been obeyed or that the action be struck out unless the order be obeyed within such time as may be allowed. In this instance Judge Gall chose the second alternative. He ordered the action to be struck out unless the particulars requested were provided within seven days. 4. In her affidavit in support of her application for leave to appeal the order of Judge Gall, and for a stay of execution pending that appeal, the Defendant has given the date on which she sold the first property, but still has not given any of the other particulars requested. She affirms that there is no legal avenue open to her now to obtain the details from her tenants, but one would have thought her to be in possession of that information before making the allegation in the Defence. In any event she must be aware of at least the names and addresses of her own tenants. 5. The grounds in support of her application are firstly that Collier Petty Limited have not suffered any prejudice. For myself I would not agree, but accept it to be arguable that what it has suffered may be more in the nature of inconvenience. Secondly, it is said that there are other defences raised in the Defence and that it is usual to strike out, unless there are special reasons, only the offending parts of a defence, leaving the rest of the defence to he dealt with at the subsequent trial. 6. It is not easy to understand from the Defence itself what those other defences. Mr. Wong, who appears for the Defendant today, has explained some of them in language that can be more readily understood. With respect, I do not think any he has referred to have much chance of success. But I am concerned with one other matter. The action is to some extent based on an order made by Mayo J. which fixed the amount of maintenance charges payable. It is not normally possible to challenge an order of the Court except by way of appeal or similar process. In this instance there was none. We are told that an application for leave out of time was rejected. 7. However the challenge which the Defence now seeks to raise goes to the jurisdiction of Mayo J., and jurisdiction being a question which a court is always bound to take for itself, it may he that the challenge will still be open to the Defendant. This is an area of law which has not been canvassed fully before us this afternoon and in my view leave should be given so that it may be. This Court will then he in a position to say whether the whole of the Defence ought to have been struck out or only that part of it which offended by lack of particularity. Leave should be conditional upon payment into Court with 7 days of the full amount of the judgment which, we are told, has now been entered against the Defendant. There should be a stay of any proceedings to enforce that judgment until the hearing of the appeal or until further order of this Court, with the costs of today reserved to the hearing of that appeal.
Fuad, .J.A.: 8. I agree for the reasons given by my Lord the Vice-President that leave to appeal should he given and with the order he proposes.
Clough, J.A.: 9. I agree with the proposed order and have nothing to add.
Michael Y.M. Wong (M/s Fred Kan & Co.) for Defendant/Applicant Nicholas Pirie (M/s Richard Bryson & Co.) for Plaintiff/Respondent |