Case Detail

HCA000658/1971

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

Action No. 658 of 1971

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BETWEEN
	SINO AMERICAN EXPRESS (HONG KONG) LIMITED	Plaintiff
	and
	LIFE KNITTING FACTORY LIMITED	Defendant

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Coram: Mr. B.L. Jones, Assistant Registrar in Chambers.

Date of Judgment: 9th August, 1971.

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DECISION

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1. This is an application by the defendants for leave to serve a rejoinder under Order 18 rule 4 of the Rules of the Supreme Court 1967. Leave will only be granted if the pleading is really required.

2. The Plaintiffs' statement of claim is endorsed on the writ of summons and claims the sum of $10,442.20 with interest at 8% and costs in respect of air freight charges due under an air bill.

3. The defence alleges that the goods were damaged and had to be sold at a loss with the result that there is a counterclaim for $56,573. A reply and defence to the counterclaim was filed by the Plaintiffs in which it is alleged that the contract is subject to the Warsaw Convention and pleads in the alternative three terms set out in the conditions of the Contract.

4. Mr. Davies for the defendants maintains that paragraphs 4, 5 and 6 of the proposed rejoinder should be specifically pleaded and that it is therefore necessary for this document to be filed. To all intents and purposes the reply is in fact the statement of claim for only brief particulars of the claim were endorsed on the writ of summons.

5. Mr. Ling for the Plaintiffs contends that the proper course for the defendants to adopt is to apply for the defence to be amended and that the filing of a rejcinder will constitute unnecessary delay and expense. I do not accept this contention for if in fact a proper statement of claim had been filed the necessity for a rejoinder would not have arisen.

6. The issues raised in the proposed rejoinder were not referred to in the defence and they are not a repetition of any of the matters contained therein.

7. Having regard to the contents of the reply which has raised matters that should have formed part of the statement of claim I am of the opinion that it is necessary that a rejoinder should be filed and served. Accordingly I grant the defendants leave for this purpose.

8. The costs of this application will be costs in the cause.

9. Dated this the 9th day of August, 1971.

	(B.L. Jones)
	Assistant Registrar

Representation:

SINO AMERICAN EXPRESS (HONG KONG) LTD v. LIFE KNITTING FACTORY LTD