Where a defendant has no defense to a claim, the plaintiff is entitled to seek summary judgment. This is provided under Order 14 of the RHC. It is a summary procedure and the court issues an order that is enforceable like an order obtained after a full trial.
The major requirement under Order 14 it is that the defendant has no defense to the plaintiff’s claim. Helen’s claim satisfies this initial requirement. Because she supplied IPhone covers pursuant to an order. Shifty has not complained of any defects or returned any owing to them being un-merchantable. Shifty thus has no defense to Helen’s claim.
The process is initiated by making a statement of claim through a writ. The writ contains the cause of action the plaintiff is pursuing. It is filed in court and served on the defendant. It gives the defendant time to respond to the claim. Service must be proper and duly effected; an application for summary judgment cannot proceed unless there is evidence of proper service and an acknowledgment of service.
Accordingly, Helen will first file a writ containing the cause of action; breach of contract. The writ is then served on Shifty to notify him of the claim and give him time to respond to it. Once Shifty acknowledges service, Helen will be entitled to make an application for summary judgment, whether or not he has filled a defense.
The application is made by summons and an affirmation. The summons state briefly the claim and the grounds upon which it is based. The affirmation verifies the facts in the summons and states that in the affirmant’s certainty, the defendant has no defense to the claim. The summons and the affirmation must be served at least ten days before the return date.
Helen should fill the summons and the affirmation stating that she supplied Shifty with the covers. That she has made several demands but he has refused and or neglected to pay. That in the circumstances he has no defense to her claim. She should attach copies of the original documents such as purchase order, delivery note and letters before action. Upon filing, she is to serve him at least ten days before the date set for hearing.
Upon service, the burden shifts to Shifty to show that he has triable issues to warrant a full trial. In Manciple Ltd v. Char On Man the court ruled the defendant has the burden of raising triable issues. Shifty will thus have to file an affirmation with ample facts and details showing the existence of a legitimate defense.
Raising a triable issue is disputing a fact in issue. However, triable issues must be genuine or bona fide. Where there is no fair and reasonable probability of the defendant having a genuine defense, the court issues summary judgment (Ng Shou Chun v. Hung Chun San). The court in Ng Siu Kei v. Chong Mee Mee stated that the defendant should not raise impossible or inconsistent facts. If the affirmation in reply raises issues that can only be determined with a full trial, the application would be unsuitable (Sin Hua Bank Ltd v. Sung Foo Kee Ltd).
If Shifty raises a defense in the affirmation of reply, the test will be whether he raises any triable issue. If the answer is in the affirmative, then Helen’s application will be denied. If the answer is in the negative, the court will proceed to hear the application.
The opening hearing is a short session lasting for an average of 15 minutes before a master. Here, Helen will make her case through arguments. If the case is not determined, the court will adjourn. At the subsequent hearing, the matter will be heard and determined based on the affirmations filed; oral testimony and witnesses are not required. The court will then make a determination.
The court can make any of four determinations. Firstly, it may dismiss the application if it is not suitable under the Order. If the claim is expressed precluded under Order 14, then it will be dismissed. Helen will have to pay Shifty’s costs for defending the application if the claim is dismissed.
Secondly, it may give Shifty conditional leave to defend if the triable issue he has raised is weak but sufficient. The court will give Shifty leave to defend the claim but append conditions to it. Such condition is requiring him to deposit security in court or to make a part payment of the claim. The final order as to costs determines the costs of the application. If Shifty complies with the order, then the matter will proceed to trial, if not, Helen will be free to apply for judgment.
Thirdly, it may give an unconditional leave to defend; if Shifty raises a definite triable issue. In Billion Silver Development v. All Wide Investments Ltd, the court held that if it is doubtful of a claim, it should give an unconditional leave to defend. As such, the final orders as to costs will determine the costs of the application.
Fourthly, it may give judgment for Helen if the court finds that the application is appropriate and that Shifty has no defense to Helen’s claim. The court will also award Helen the costs of the application in addition to the costs of the cause. The judgment granted is enforceable and Helen may seek to enforce it soon after.
It is imperative to note that the court’s decision is appealable. Such appeal is before a judge in chambers. The appeal is essentially re-hearing the application and the judge may call for new evidence or ask the parties to file additional affirmations. The judge will either set aside the judgment or confirm it. If judgment is entered in Helen’s favor and Mak fails to appeal, then Helen will be at liberty to enforce it.
Reference List
Fred, S. N., 2012. Textbook and Workbook on Civil Procedure
Billion Silver Development v. All Wide Investments Ltd[2000] 2 HKC 262
Manciple Ltd v. Char On Man[1995] 3 HKC 459
Ng Shou Chun v. Hung Chun San(1994) 1 HKC 155 (CA)
Ng Siu Kei v. Chong Mee Mee [1999] 1 HCK 693
