HCK CHINA INVESTMENTS LTD. v. WAH NAM GROUP LTD.

HCA015615A/1999

HCA 15615/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 15615 OF 1999

____________

BETWEEN:
	HCK CHINA INVESTMENTS LIMITED	Plaintiff
	AND
	WAH NAM GROUP LIMITED	Defendant

 

AND

HCA 15616/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 15616 OF 1999

____________

BETWEEN:
	INVESTMENT AUSTASIA LIMITED	Plaintiff
	AND
	WAH NAM GROUP LIMITED	Defendant

_____________

(Heard together)

Coram: Hon Yuen J in Chambers

Date of Hearing: 5 June 2000

Date of Decision: 5 June 2000

 

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D E C I S I O N

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1. The proceedings in this action is in something of a procedural labyrinth at the moment.

2. The Writ was issued in September 1999. It was based on 4 promissory notes having been made by the Defendant in favour of the Plaintiff in September 1998. The Writ with Statement of Claim endorsed pleads that on 15 September 1999, the interest due was not paid by the Defendant company. Accordingly, the Writ was issued on 30 September 1999 for the sum of A$160,000.00 with interest, further or other relief and costs.

3. On 29 October 1999, the Defendant company applied for an extension of time which was granted and on 16 November 1999, the Defendant made a second application for extension of time.

4. On 19 November 1999, Master Kwan made an order to the effect that unless the Defendant do file and serve on the Plaintiff its defence by 4:00 pm on 17 December 1999, the Plaintiff be at liberty to enter judgment against the Defendant for the amount claimed in the Statement of Claim with costs, and for costs of the application to be to the Plaintiff in any event.

5. However, on 14 December 1999, three days before that deadline, the Defendant applied under Order 12 Rule 8 of the Rules of the High Court for a stay of the proceedings under the inherent jurisdiction of the Court or for the dismissal of the action on the ground of forum non conveniens as the Australian Court is the more appropriate forum than Hong Kong for the trial of the action; further or in the alternative, the Hong Kong Court has no jurisdiction over the Defendant in respect of the promissory notes made by the Defendant, i.e. the subject matter of the claim, and the remedy sought in the action.

6. I note, therefore, that this application is made on two bases. First, that Hong Kong courts are not the convenient forum and more importantly, that the Hong Kong courts have no jurisdiction over the Defendant in respect of the promissory notes made.

7. What then happened was that on 17 December 1999, the Registrar stayed Master Kwan's Unless Order pending the hearing of the Order 12 Rule 8 application. There was before then no appeal from the Unless Order.

8. On 17 December 1999, the Defendant took out a "Notice of Appeal" giving an indication that it intended to appeal against the decision of Master Kwan making the Unless Order. It would appear that that appeal, or rather that application for extension of time to appeal, was due to be heard before me today.

9. In the meantime, however, the matters had taken a different turn. Although the Defendant's application under Order 12 Rule 8 (which was taken out on 14 December 1999) was due to be heard today together with the application for extension of time to file Notice of Appeal from Master Kwan's Unless Order, what the Plaintiff did in January 2000 was to separately apply to strike out the Defendant's Order 12 Rule 8 application. That matter was heard in May 2000 by Deputy Judge Wong who gave a decision against the Defendant. That decision is under appeal and I have been informed that the appeal has been set down and is now simply awaiting a date from the Court of Appeal.

10. Meantime, the question arises as to what should be done in relation to the application for extension of time to appeal from Master Kwan's Unless Order, and what should be done in relation to a stay of that.

11. Mr Shipp and Mr Chain have made submissions this morning and it seems to me that what is one of the more important factors for me to take into account is the fact that if the Defendant is right that the Hong Kong Court has no jurisdiction (as it wants to submit under paragraph 2 of its summons) then it would not be right for this court to order a Defence to be filed because that would in effect force the Defendant to submit to the jurisdiction and prejudice their Order 12 Rule 8 application.

12. I have heard what Mr Shipp had to say in relation to the fact that the application for extension of time to file a Notice of Appeal from the Master's Unless Order has been substantially out of time, and it would also appear to be the case that the evidence in support of the Defendant's application has not been as comprehensive as it ought to be but, in my view, substantial prejudice would be caused to the Defendant's application under paragraph 2 of its summons of 14 December 1999 if I were to order it to file a Defence now. Mr Shipp submits that I could order them to file the Defence now but simply stay that order pending the decision of the Court of Appeal as to whether the application should have been struck out.

13. In my view, there is no point doing that and in any event, I think it would be wrong if the Defendant has anything in their contention that the Hong Kong Court has no jurisdiction. Whether they will be successful or not is another matter that cannot be decided by me today but would have to await a decision on a further day if they are successful in their appeal from the decision of the Deputy Judge Wong.

14. I have noted Mr Shipp's submission that in Mr Ting's affirmation of 17 December 1999, he has not said in so many words that the Hong Kong Court has no jurisdiction and has simply said that the Hong Kong Court is a more convenient forum. Be that as it may, at paragraph 2 of the summons it makes it quite clear that it is the Defendant's case that the Hong Kong Court has no jurisdiction over the promissory notes and I cannot prejudge that issue now.

15. Accordingly, what I would do in relation to this application for extension of time to appeal from Master Kwan's Unless Order is to adjourn it pending the determination of the Court of Appeal in the Defendant's appeal from Deputy Judge Wong's order.

 

 

 

Representation:

Mr Colin Shipp, instructed by King & Co., for the Plaintiff in both actions

Mr Benjamin Chain, instructed by Siao Wen & Leung, for the Defendant in both actions

 

HCA015615/1999

HCA 15615/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 15615 OF 1999

____________

BETWEEN
	HCK CHINA INVESTMENTS LIMITED	Plaintiff
	AND
	WAH NAM GROUP LIMITED	Defendant

____________

HCA 15616/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 15616 OF 1999

____________

BETWEEN
	INVESTMENT AUSTASIA LIMITED	Plaintiff
	AND
	WAH NAM GROUP LIMITED	Defendant

____________

Coram: Deputy High Court Judge Wesley Wong in Chambers

Date of Hearing: 4 May 2000

Date of Reasons for Decision: 12 May 2000

 

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REASONS FOR DECISION

____________________________________

 

1. These are two summonses in which the Plaintiff in HCA 15615/99 & the Plaintiff in 15616/99 seek to strike out the Defendant's summonses to stay proceedings under O. 12 r. 8 of the Rules of High Court on the ground of forum non conveniens as the Australia Court is the more appropriate forum.

2. The ground of the two Plaintiffs' application is that the Defendant in those two actions had not filed any affidavit in support of its application pursuant to Registrar Chu's order.

The full factual context of the Defendant's breach is as follows:

(i) writs with Statement of Claim in H.C.A. 15615 and 15616 issued on 30.9.99;

(ii) Defendant file acknowledgement of service on 12.10.99;

(iii) On 1.11.99 the Defendant obtained from Master Lok 14 days extension of time to file its Defences but failed to do so;

(iv) Defendant applied for another extension of time on 16.11.99;

(v) On 19.11.99, Master Kwan made an order that unless the Defendant was to file and serve its Defence by 17.12.99 the Plaintiff be at liberty to enter judgment;

(vi) On 14.12.99, Defendant took out O. 12 r. 8 Summonses to be heard on 21.12.99;

(vii) On 17.12.99

(a) Defendant filed Notice of Appeal against unless order;

(b) Defendant arranged a sudden urgent appearance before Registrar Chu and obtained orders, inter alia,

(1) to stay the unless order pending determination of O. 12 r. 8 Summonses;

(2) to adjourn the hearing of O. 12 r. 8 Summonses (scheduled on 21.12.99) to be heard before a judge together with the appeal;

(3) Defendant to file the supporting affirmation within 3 days;

(viii) Defendant failed to file the supporting affirmation within the 3 days as ordered or at all;

(ix) Plaintiff put on record the Defendant's breach on 30.12.99 and 7.1.99 and Defendant failed to give any response;

(x) The Plaintiff's present Summons and affirmation were filed on 18.1.2000;

(xi) Up to date no response from Defendant at all.

3. The mandatory requirement under O. 12 r. 8 is that the application must be supported by affidavit verifying the facts on which the application is based and a copy of the affidavit must be served with the summons.

4. The Defendant on 17 December 1999 on its own application before Registrar Chu must have known that it had to file supporting affidavit within 3 days. No supporting affidavit had been filed within 3 days as ordered.

5. On 30 December 1999 the Plaintiffs through their solicitors wrote to the Defendant's solicitors to put on record that they had not received any further affirmation apart from the Affirmation of Ting Koon Hung to support the hearing for stay of the unless order. There was no response from the Defendant's solicitors.

6. On 7 January 2000 the Plaintiff's solicitors wrote again to say that the time for filing affidavit in support had long expired. Again there was no response from the Defendant's solicitors.

7. The Defendant had not filed any affidavit in support at the hearing of these two summonses.

8. No application under O. 3 r. 5 was made to extend time to file the affidavit.

9. It was only in the Defendant's skeleton submission that Mr Chain of counsel submitted "the point is to say the least technical to the extreme, it is plain that the Defendant relies on Ting Koon Hung's affirmation filed on 17 December 1999".

10. With respect I do not agree. Ting Koon Hung's affirmation was in support of the application to stay the unless order. The Registrar had read the affirmation before she gave the order. She must be of the view that that affirmation cannot support the O. 12 r. 8 application. Alternatively, the Defendant did not intend to use that affirmation to support this O. 12 r. 8 application otherwise its solicitors would have applied to the Registrar for such order. In the further alternative the Defendant's solicitors could have made known to the Plaintiff's solicitors of such intention and applied for such order when they were notified of their non-compliance with Registrar Chu's order.

11. It is obvious that the Defendant had not complied with the Registrar's order nor was there any explanation for its non-compliance.

12. I have to consider whether I should exercise my discretion to allow the Defendant to proceed with the O. 12 r. 8 application notwithstanding its non-compliance with the order.

13. In Yeung Fu Lin & Anor v. Wong Kam Hung & Anor [1997] 3 HKC 809 at p. 811 per Findlay J, "... in order to achieve an exercise of the court's discretion to condone the late filing of the application to set aside, the first Defendant must give an explanation for his tardiness" Findlay J went on to say, "This absence of an explanation, acceptable or otherwise, gives me no basis on which I should exercise my discretion in favour of the first Defendant."

14. There is no doubt that there was no explanation at all. But then will the dismissal of the O. 12 r. 8 summons cause injustice to the Defendant? I do not think so. It does not mean that the Defendant will be deprived of the right to have issues to be tried. The Defendant has continued right of access to the courts in Hong Kong. Considerable time and costs had been incurred. Further there has been considerable delay be the Defendant asking for time. No prejudice nor injustice could have been caused to the Defendant.

15. For reasons above I will not exercise my discretion in favour of the Defendant and there be order in terms of the Plaintiffs' summons.

 

 

 

Representation:

Mr Mok Yuek Chi, instructed by Messrs King & Co., for the two Plaintiffs in both actions

Mr Benjamin Chain, instructed by Messrs Siao, Wen & Leung, for the Defendant in both actions