JOHN JUDE MONTEIRO AND ANOTHER v. THE INCORPORATED OWNERS OF BLOCK NOS. 41, 42, 43 & 44, baguio villa AND OTHERS

JOHN JUDE MONTEIRO AND ANOTHER v. THE INCORPORATED OWNERS OF BLOCK NOS. 41, 42, 43 & 44, baguio villa AND OTHERS

Applying the established test from In re Jokai/PT Bank Pembangunan, the court concluded the defendants' non-compliance was not intentional or contumelious but caused by extraneous circumstances (typhoon and practical difficulties in obtaining the signature and filing), and therefore the strike out should be set aside and the defendants' defence reinstated; the court exercised discretion to allow relief and awarded costs on the appeal to the plaintiffs with a gross sum assessment of $96,850.

Citation
JOHN JUDE MONTEIRO AND ANOTHER v. THE INCORPORATED OWNERS OF BLOCK NOS. 41, 42, 43 & 44, baguio villa AND OTHERS
Parties
1st Plaintiff: John Jude Monteiro; 2nd Plaintiff: Carol Ann Monteiro; 1st Defendant: The Incorporated Owners of Block Nos. 41, 42, 43 & 44, Baguio Villa; 2nd Defendant: ISS Eastpoint Property Management Limited; 3rd Defendant: Mega Projects Construction Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 October 2008
Case Number
HCA362/2007
Procedural Posture
Civil (action and Interlocutory Proceedings) / Interlocutory Appeal Against a Master's Unless Order (strike Out Application)
Outcome
Appeal allowed; the master's order striking out the defence was set aside and the defendants' defence reinstated
Legal Topics
Unless Order, Disclosure, Strike Out for Non Compliance, Extension of Time, Contumelious Conduct, Costs Assessment
Source Language
EN
Civil Procedure Discovery Costs Unless Order Disclosure Strike Out for Non Compliance Extension of Time Contumelious Conduct +1 more

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Parties

John Jude Monteiro

1st Plaintiff

Carol Ann Monteiro

2nd Plaintiff

The Incorporated Owners of Block Nos. 41, 42, 43 & 44, Baguio Villa

1st Defendant

ISS Eastpoint Property Management Limited

2nd Defendant

Mega Projects Construction Limited

3rd Defendant

Procedural Posture

Civil (action and Interlocutory Proceedings) / Interlocutory Appeal Against a Master's Unless Order (strike Out Application)

Legal Issues

  1. 1 Whether non-compliance with an unless order was intentional and contumelious
  2. 2 Whether non-compliance caused by extraneous circumstances or solicitor/default should excuse breach
  3. 3 Whether to restore the defendants' defence and refuse strike out

Ratio Decidendi

Applying the established test from In re Jokai/PT Bank Pembangunan, the court concluded the defendants' non-compliance was not intentional or contumelious but caused by extraneous circumstances (typhoon and practical difficulties in obtaining the signature and filing), and therefore the strike out should be set aside and the defendants' defence reinstated; the court exercised discretion to allow relief and awarded costs on the appeal to the plaintiffs with a gross sum assessment of $96,850.

Court Disposition

Appeal allowed; the master's order striking out the defence was set aside and the defendants' defence reinstated

Orders

  • Unless order set aside and defendants' defence reinstated
  • Order nisi that plaintiffs have the costs of this appeal