CHAN KA KUI v. GLOBAL STEVEDORING SERVICE CO LTD AND OTHERS

CHAN KA KUI v. GLOBAL STEVEDORING SERVICE CO LTD AND OTHERS

The Master\u2019s order was discharged because the ex parte affidavit failed to disclose material facts, notably that the primary three-year limitation period had already expired; additionally the plaintiff did not establish good reason to extend the writ since the failure to serve was a deliberate choice to await legal aid re-assignment and advice when service within the original period was practicable; therefore the discretion to extend was not engaged and relief must be refused.

Citation
CHAN KA KUI v. GLOBAL STEVEDORING SERVICE CO LTD AND OTHERS
Parties
Plaintiff: Plaintiff; Defendant: 1st Defendant; Defendant: 2nd Defendant; Defendant: 3rd Defendant; Defendant: 4th Defendant
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
22 December 2016
Case Number
DCPI2712/2014
Procedural Posture
Application to Discharge Order Extending Validity of Writ and to Set Aside Writ and Service / Interlocutory Hearing (application to Discharge Master\u2019s Order)
Outcome
Summons allowed; Master J. Chow\u2019s order dated 25 Nov 2015 discharged; writ and its service set aside; costs ordered to defendants as per summons.
Legal Topics
Extension of Validity of Writ, Ex Parte Application, Material Non Disclosure, Good Reason Test, Discretion to Extend Writ, Service of Writ, Limitation Defence
Source Language
EN
Civil Procedure Limitation Personal Injuries Legal Aid Extension of Validity of Writ Ex Parte Application Material Non Disclosure Good Reason Test +3 more

Case Brief

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Parties

Plaintiff

Plaintiff

1st Defendant

Defendant

2nd Defendant

Defendant

3rd Defendant

Defendant

4th Defendant

Defendant

Procedural Posture

Application to Discharge Order Extending Validity of Writ and to Set Aside Writ and Service / Interlocutory Hearing (application to Discharge Master\u2019s Order)

Legal Issues

  1. 1 Whether there was material non-disclosure in the ex parte affidavit
  2. 2 Whether the plaintiff established good reason to trigger the court\u2019s discretion to extend the writ
  3. 3 Whether the court should exercise its discretion to grant the extension despite any good reason

Ratio Decidendi

The Master\u2019s order was discharged because the ex parte affidavit failed to disclose material facts, notably that the primary three-year limitation period had already expired; additionally the plaintiff did not establish good reason to extend the writ since the failure to serve was a deliberate choice to await legal aid re-assignment and advice when service within the original period was practicable; therefore the discretion to extend was not engaged and relief must be refused.

Court Disposition

Summons allowed; Master J. Chow\u2019s order dated 25 Nov 2015 discharged; writ and its service set aside; costs ordered to defendants as per summons.

Orders

  • Order of Master J. Chow dated 25 Nov 2015 extending validity of the Writ discharged
  • Writ of Summons issued 4 Dec 2014 and its service on the defendants set aside