Chan Hon Choi and Another v. Cheng So Mei and Others
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HCMP1443/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO.1443 OF 2009 ----------------------
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---------------------- Before : Deputy High Court Judge Burrell in Chambers Date of Hearing : 11 February 2010 Date of Decision : 23 February 2010 ---------------------- D E C I S I O N ---------------------- 1.This is an appeal against a decision of Master de Souza given on 6 October 2009. On that occasion after brief argument he struck out the plaintiffs’ claim due to a failure by the plaintiffs to comply with the following “unless” order :
2.The unless order had been entered into by consent on 14 September 2009 following exchanges of correspondence between solicitors. 3.The action had commenced in late July 2009. At the time of issuing the Originating Summons (seeking various declarations concerning the validity and legality of various board meetings and board decisions) the plaintiffs applied, ex parte, for an injunction. An affirmation by the 1st plaintiff (“Chan 1”) was filed in support. The injunction was not granted. 4.The matter proceeded. On 28 August the defendants’ solicitors wrote to the plaintiffs’ solicitors reminding them of the requirement, pursuant to Order 28 rule 1A, to file a supporting affirmation for the originating summons and that the dead line for the affirmation was 7 September. 5.An extension of time of 7 days was agreed on the basis that any further extension would only be agreed if it was on an “unless basis”. 6.Four days later on 11 September the plaintiffs requested a further extension stating that their counsel was in the process of preparing the affirmation and needed more time. The plain inference to be drawn from this was that a new and comprehensive document was being prepared. 7.On 14 September the “unless” consent order was agreed. It gave the plaintiffs a further 14 days. Failure to comply would result in a strike out. 8.The next event in the chronology is somewhat surprising. The 1st plaintiff (the 2nd plaintiff is a company) travelled to China on 19 September for an unknown period. It seems he had not given any instructions for the affirmation “being prepared” or signed anything prior to his departure. 9.In any event he was away for the remainder of the 14-day extension. 10.At the 11th hour on 28 September the plaintiff’s solicitor, Mr Ngan Wai Ip, filed a 2 page affirmation stating (i) that he was authorized to make the affirmation on behalf of the 1st and 2nd plaintiffs (there was no evidence of the authority from the 2nd plaintiff) (ii) that the 1st plaintiff was in China and (iii) “matters relating to the present action have already been deposed to in the affirmation of Chan Hon Choi” (“Chan 1). 11.This affirmation (“Ngan 1”) also exhibited “Chan 1”. 12.There was no adequate explanation as to why Chan been in China since 19 September and had failed to provide instructions for the affirmation in support of the Originating Summons. There was no explanation why the plaintiffs’ solicitors had not utilized Order 41 rule 12 while he was away (affirmations taken abroad). There was no reference to any affirmation “in the process of being prepared by counsel”. 13.After a short hearing on 6 October the Master clearly decided that “Ngan 1” did not comply with the unless order. It was not an affirmation of the 1st and 2nd plaintiffs, the authority to represent was dubious, it added nothing to the case, there was no new evidence and the excuse that Mr Chan was in China was most unimpressive. 14.At the time of the hearing on 6 October, a further 8 days had passed since 28 September yet there was still no reference to the affirmation that counsel was preparing. At the very least one would have expected a draft to have been prepared and shown to the court in support of a request for the court to exercise its discretion to allow further time even if the order itself had not been complied with. 15.I agree with the Master’s decision that the unless order had not been complied with, for reasons given hitherto. The question now arises whether this court, on appeal, should reconsider the question of discretion in the light of present circumstances. 16.On 29 October two further affirmations were filed (“Chan 2” and “Ngan 2”). Both deal with the explanations and excuses for the failure to meet the 28 September deadline. In particular “Ngan 2” goes into some detail about the communications between Mr Ngan and counsel who had been briefed to prepare the affirmation in support. 17.What is somewhat surprising is that no “new” affirmation has ever been filed or served in this case. On 9 February 2010 (2 days before this appeal) the solicitors for the defendants received an affirmation dated 30 October 2009 (“Chan 3”). In effect it is a verbatim replication of “Chan 1”. 18.I was told in the course of the hearing that there will be no further evidence from the plaintiffs. Their evidence always was that which was contained in “Chan 1” and no more. That being so it is all the more remarkable that such a state of affairs was never clearly conveyed to either the defendants or the court at the material time. 19.In such circumstances it would have been a straightforward task to get Mr Chan to sign an affirmation to that effect before going to China on 19 September and it was wholly unnecessary to instruct counsel to prepare an affirmation which, at the end of the day, was no more than a copy of the affirmation dated 28 July. 20.If the matter were to proceed it would be on the basis of the evidence contained in “Chan 1” and “Chan 3” (which are effectively identical). Mr Simon Yip, counsel for the defendants, informed the court that an application to strike out on the merits would follow. He briefly outlined the basis of such an application which, on the face of it, clearly had prospects of success. 21.However, in my judgment, this will not be necessary. I find there to be no factors which have occurred since the hearing on 6 October 2009 which cause me to exercise this court’s discretion any differently from the Master. Neither do I think that the Master’s exercise of his discretion was wrong. 22.In addition to all the above matters I am reminded of the new Order 2 rule 4 which states :
23.This appeal is dismissed with costs to the defendants.
Mr Arthur C.H. Yip, instructed by Messrs Day & Chan, for the Plaintiffs Mr Simon Yip, instructed by Messrs Patrick K.H. Lam & Co., for the Defendants |
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