CON-TECH FRANCHISE ASIA LTD v. CENTURY CITY HOLDINGS LTD AND ANOTHER

CON-TECH FRANCHISE ASIA LTD v. CENTURY CITY HOLDINGS LTD AND ANOTHER

The court accepted the plaintiff's explanation that delay was caused by a dispute with former solicitors resulting in delayed access to papers, found no established real prejudice to the 1st defendant (compound interest prejudice premature and with due diligence reply could be prepared), and concluded that in the interests of justice an extension should be granted; accordingly the appeal was allowed, leave given to file the affirmation out of time and defendants permitted to file replies by a set date, with costs of the appeal ordered against the plaintiff to be paid forthwith.

Citation
CON-TECH FRANCHISE ASIA LTD v. CENTURY CITY HOLDINGS LTD AND ANOTHER
Parties
Plaintiff (original Action): CON-TECH FRANCHISE ASIA LIMITED; 1st Defendant (original Action) and Plaintiff (by 1st Defendant's Counterclaim): CENTURY CITY HOLDINGS LIMITED; 2nd Defendant (original Action) and Plaintiff (by 2nd Defendant's Counterclaim): CHONG SHUI KIT; 3rd Defendant (by 1st Defendant's Counterclaim): DANIEL SHU YIN BONG; Defendant (third Action): CH'NG POH
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
6 March 2001
Case Number
HCA1343/1990
Procedural Posture
Application to Extend Time to File Affirmation in Opposition; Application to Dismiss for Want of Prosecution / Appeal From Master's Order Dismissing Plaintiff's Summons to Extend Time; Rehearing Before Deputy High Court Judge
Outcome
Appeal allowed; plaintiff given leave to file affirmation in opposition out of time; defendants granted leave to file affirmation in reply by specified date; costs of appeal awarded against plaintiff.
Legal Topics
Extension of Time, Want of Prosecution, Dismissal for Want of Prosecution, Prejudice Assessment, Service of Affidavits/affirmations, Exercise of Judicial Discretion, Costs Orders
Source Language
EN
Civil Procedure Civil Litigation Costs Judicial Review/appeal Extension of Time Want of Prosecution Dismissal for Want of Prosecution Prejudice Assessment +3 more

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Parties

CON-TECH FRANCHISE ASIA LIMITED

Plaintiff (original Action)

CENTURY CITY HOLDINGS LIMITED

1st Defendant (original Action) and Plaintiff (by 1st Defendant's Counterclaim)

CHONG SHUI KIT

2nd Defendant (original Action) and Plaintiff (by 2nd Defendant's Counterclaim)

DANIEL SHU YIN BONG

3rd Defendant (by 1st Defendant's Counterclaim)

CH'NG POH

Defendant (third Action)

Procedural Posture

Application to Extend Time to File Affirmation in Opposition; Application to Dismiss for Want of Prosecution / Appeal From Master's Order Dismissing Plaintiff's Summons to Extend Time; Rehearing Before Deputy High Court Judge

Legal Issues

  1. 1 Whether the plaintiff should be granted an extension of time to file an affirmation in opposition out of time
  2. 2 Whether the plaintiff's explanation for delay (dispute with former solicitors withholding papers) was adequate
  3. 3 Whether the defendants suffered real prejudice from the late filing that cannot be compensated by costs

Ratio Decidendi

The court accepted the plaintiff's explanation that delay was caused by a dispute with former solicitors resulting in delayed access to papers, found no established real prejudice to the 1st defendant (compound interest prejudice premature and with due diligence reply could be prepared), and concluded that in the interests of justice an extension should be granted; accordingly the appeal was allowed, leave given to file the affirmation out of time and defendants permitted to file replies by a set date, with costs of the appeal ordered against the plaintiff to be paid forthwith.

Court Disposition

Appeal allowed; plaintiff given leave to file affirmation in opposition out of time; defendants granted leave to file affirmation in reply by specified date; costs of appeal awarded against plaintiff.

Orders

  • Leave to the plaintiff to file and serve the affirmation in opposition out of time
  • Leave to the defendants to file and serve the affirmation in reply by 12 noon, 10 March 2001