1.
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我大狀skeleton Part D MERIT
2. Jugement 59段
58. With regard to (i) and (j), the Defendants would be prejudiced if the present action is allowed to be continued:
(1) As rightly pointed out by Mr Ho, this is a stale commercial dispute commenced in 2017 centred on an oral agreement allegedly concluded in 2015.
(2) The Defendants were entitled to assume that the action had been dismissed after the Unless Order came into effect for 2 years 8 months. If the Court does not enforce an unless order, an innocent party will be left in the uncertainty of not knowing when the party in the wrong can come back to ask for an extension of time.
(3) By not receiving appropriate advice from Vidler and Co and other solicitors, the Defendants have been vexed with various applications. On 6 May 2023, the Plaintiff issued a summons which sought to shift the costs liability to TCW. The application was dismissed by Master Lai with costs on 16 May 2023. The same argument was raised again when the Plaintiff opposed leave to commence taxation, but was rejected by Master Hui on 4 April 2023. Then, at the Stay Summons hearing, the same argument was raised for the third time and rejected by Registrar Kwang.
59. On the other hand, failure to take out a discovery application under the Unless Order could not have prejudiced the Defendants. However, if relief is not granted, the Plaintiff would be deprived of the opportunity of pursuing a potentially substantial claim. Whilst he may have a claim against TCW for damages arising from the dismissal of the claim, the proprietary relief of 35% shareholding sought by the Plaintiff cannot be claimed against TCW.
60. Given, the disproportionate nature of the sanction, the fault of TCW, the lack of intentional and contumelious disregard of court orders, and balancing the prejudice to both parties, I exercise my discretion to grant relief from the sanction imposed in the Unless Order in the interests of justice, despite the inordinate and inexcusable delay.