IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 5349 OF 1998
Coram: The Hon. Mr. Justice Sakhrani in Chambers
Date of Hearing: 14 October 1998
Date of Judgment: 14 October 1998
J U D G M E N T
1. This is an appeal from the order of Master Jones whereby he ordered that the summons taken out by the Plaintiff on 16th September1998 be dismissed with costs to the Defendant. The summons of 16th September 1998 was an application by the Plaintiff for an orderthat leave be given to the Plaintiff to file and serve the 2nd affirmation of Mr. Fung Ting within 7 days from the date of the orderto be made, notwithstanding that the time for so doing had expired.
2. The dispute between the parties is a dispute between landlord and tenant. The writ of summons was issued on 3rd April 1998 seekingvacant possession. An acknowledgement of service was filed on 22nd April 1998, but a defence was not filed in time. A default judgmentwas obtained on 20th April 1998. On 7th July 1998, the Defendant applied to set aside the default judgment and filed an affirmationin support. On 22nd July 1998, the 1st affirmation of Mr. Fung Ting of the Plaintiff was filed and served on the Defendant.
3. At the hearing before Master Cannon on 28th July 1998, which was a callover hearing, she made an order that the hearing be adjournedto a date to be fixed with one hour reserved. She also ordered that the Plaintiff do have leave to file and serve an affirmationin opposition within 14 days thereof and the Defendant do have leave to file and serve an affirmation in reply within 14 days thereafterand that no further affidavit evidence to be filed or served unless with leave of the court.
4. Now, at that time, the 1st affirmation of Mr. Fung Ting had already been filed and served. This fact must have been known to theDefendant and must have been in the court file already at that time. The order giving the Plaintiff leave to file and serve an affirmationin opposition within 14 days thereof must relate, in my judgment, to an affirmation which was to be filed at sometime after the makingof the order of Master Cannon. The 14 days’ period expired on or about 11th August 1998. No affirmation was filed on behalf of thePlaintiff by that time.
5. However, on 16th September 1998, the Plaintiff issued a time summons for filing and serving the 2nd affirmation on Mr. Fung Ting.This essentially exhibited in evidence a Certificate of Primary User of the premises which had been obtained from the Rating andValuation Department in respect of an inspection on 10th August 1998. The certificate itself is dated 14th September 1998. This providessome evidence as to the user of the premises which I understand was the main contention between the parties, namely whether the premiseswere domestic or non-domestic at the material time. The Certificate, of course, is not conclusive.
6. The reason why the Plaintiff was late in filing the 2nd affirmation was because it had to wait for the Certificate to be obtainedfrom the Rating and Valuation Department. By the 3rd affirmation of Mr. Ng Ngai Man Raymond, it is shown that the application forthe Certificate of Primary User was made on 27th July 1998. That was one day before the callover hearing before Master Cannon.
7. In the circumstances, I think it is a reasonable construction of Master Cannon’s order that the affirmation to be filed on behalfof the Plaintiff would be an affirmation made subsequent to the order of Master Cannon of 28th July 1998. The Plaintiff was latein serving that but there are good reasons given. I do not think the Defendant would be prejudiced because the order of Master Cannonalready provides for the Defendant to file and serve an affirmation in reply within 14 days thereafter. The Defendant has had theaffirmation for sometime now. The hearing is fixed for 5th November 1998. That still gives the Defendant sufficient time to answerthe 2nd affirmation of Mr. Fung Ting.
8. In the circumstances, I allow the appeal and set aside the order of Master Jones. I give leave to the Plaintiff to file and servethe 2nd affirmation of Mr. Fung Ting notwithstanding that the time for so doing has expired. I order that this affirmation be filedand served today. Costs of the hearing before Master Jones to be paid by the Plaintiff to the Defendant in any event. Costs of theappeal to be paid by the Defendant to the Plaintiff in any event.
Mr. C.Y. Li, instructed by Messrs. Chan Ng & Lam for Plaintiff.
Mr. Fung Shu Wah, of, Messrs. Ng Tam Ko & Chan for Defendant.