ETERNAL WEALTH HOLDINGS LTD AND OTHERS v. ORIENTAL SUPREME (HK) LTD AND ANOTHER

ETERNAL WEALTH HOLDINGS LTD AND OTHERS v. ORIENTAL SUPREME (HK) LTD AND ANOTHER

The application to vacate the trial dates is allowed because on the balance of probabilities the 2nd defendant's recent surgeries, ongoing heavy pain medication and pending surgery materially impair his ability to give effective oral evidence, his testimony is central as the sole defendant witness, and the prejudice...

Source-derived case information.

Citation
[2023] HKCFI 1890
Parties
1st Plaintiff: ETERNAL WEALTH HOLDINGS LIMITED; 2nd Plaintiff: GPL SHIPPING LIMITED; 3rd Plaintiff: YEUNG MING TAT, BRIAN; 1st Defendant: ORIENTAL SUPREME (HK) LIMITED; 2nd Defendant: NAHATA VIJAY PRAKASH
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 June 2023
Case Number
HCA1605/2017
Procedural Posture
Civil Commercial Action / Interlocutory Application to Vacate Trial Dates
Outcome
Application allowed in part; trial dates vacated and adjourned
Legal Topics
Adjournment of Trial, Vacating Trial Dates, Witness Fitness to Testify, Medical Evidence, Costs
Source Language
en
Civil Procedure Commercial Law Evidence Law Adjournment of Trial Vacating Trial Dates Witness Fitness to Testify Medical Evidence Costs

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Parties

ETERNAL WEALTH HOLDINGS LIMITED

1st Plaintiff

GPL SHIPPING LIMITED

2nd Plaintiff

YEUNG MING TAT, BRIAN

3rd Plaintiff

ORIENTAL SUPREME (HK) LIMITED

1st Defendant

NAHATA VIJAY PRAKASH

2nd Defendant

Procedural Posture

Civil Commercial Action / Interlocutory Application to Vacate Trial Dates

Legal Issues

  1. 1 Whether the trial dates should be vacated due to the 2nd defendant's medical condition
  2. 2 Whether the 2nd defendant's testimony is essential to the defendants' case
  3. 3 Whether the medical evidence adduced is sufficient on the balance of probabilities

Ratio Decidendi

The application to vacate the trial dates is allowed because on the balance of probabilities the 2nd defendant's recent surgeries, ongoing heavy pain medication and pending surgery materially impair his ability to give effective oral evidence, his testimony is central as the sole defendant witness, and the prejudice of a 7½ month adjournment to the plaintiffs is outweighed by the unfairness of forcing him to testify in his medical condition; these facts constitute exceptional circumstances justifying vacatur and rescheduling of the trial to 6 May 2024.

Court Disposition

Application allowed in part; trial dates vacated and adjourned

Orders

  • 2nd defendant to file and serve a properly notarised affidavit within 14 days or provide an affidavit from instructing solicitors explaining inability to comply and indicating when it can be done, supported by documentary evidence if applicable
  • Trial scheduled on 21 September 2023 with seven days reserved vacated and adjourned to 6 May 2024 with seven days reserved