Read the full judgment text of CACV 000149/1989 on BabelCite. This Court of Appeal judgment was delivered on 1 March 1990 before Clough JA, Penlington JA, Nazareth J.
Civil procedure – pleading – peremptory 'unless' order – striking out defence and entering judgment for plaintiff in default of pleading to specified paragraphs of statement of claim – appeal – Telford Development Limited contracted with Mass Transit Railway Corporation under the MTR contract dated 10 September 1976 to construct 21 blocks of flats at Telford Gardens in Kowloon – Telford sub-contracted construction of 11 of the 21 blocks to Shui On Construction Company Limited under the Telford contract dated 11 December 1980 for HK$233.4 million – architect's final certificate issued 2 February 1983 – MTR issued writ 17 June 1986 alleging defective concrete work – Telford issued writ 3 April 1987 against Shui On – Godfrey J. dismissed Shui On's stay application 21 February 1989 – Sears J.'s order of 19 May 1989 directed Telford to provide further and better particulars of paragraphs 10 and 11 of the statement of claim within 42 days and Shui On to plead within 28 days thereafter – Telford served particulars 30 June 1989, acknowledged 3 July – Shui On did not plead – Mayo J. made peremptory 'unless' order 29 September 1989 striking out defence and entering judgment unless Shui On pleaded within 7 days – whether Sears J.'s order was a time order or a mode-of-compliance order – whether Telford's particulars were genuine or illusory – whether peremptory order was too wide – whether Sears J.'s order dealing with time for provision of particulars was to be construed as a time order complying with Reiss v. Woolf [1952] 2 QB 557 – held that the order was a time order dealing with time of compliance rather than adequacy – parties dissatisfied with adequacy must apply for extension, not disregard the order – Telford's particulars were genuine and not illusory, although they may have been inadequate – Telford faced genuine difficulties because it was still obtaining full particulars of MTR's claim – Shui On had elected to have strike-out application adjudicated elsewhere and could not inconsistently claim particulars were illusory – Shui On was capable of pleading and the peremptory order was within the judge's discretion – appeal dismissed with order nisi for costs of appeal to Telford – Telford's only purpose was to compel pleading and a further extension would not be opposed – the matter described as a 'storm in a procedural tea-cup'.
Legal issues: Construction of Sears J.'s order as a time order versus a mode-of-compliance order · Whether the particulars furnished by Telford were genuine and not illusory · Whether the peremptory 'unless' order was too wide
Outcome: Appeal dismissed. The peremptory 'unless' order of Mayo J. dated 29 September 1989 was upheld.
Cited by 2 cases