The recent case of Chan Luen v Chan Kwong Chi (HCA 1038/2018) highlights the importance of proper drafting of an order requiring a party to provide further and better particulars of pleadings, and the need to take any objections to providing the particulars promptly and expressly.

Background

The relevant factual and procedural history in the Chan Luen case is as follows:

Date

Event

23 Nov 2018

The Plaintiff served a request for further and better particulars of the Defence and Counterclaim on the Defendants (Request).

19 Dec 2018and 3 Jan 2019

The Defendants’ solicitors called and told the Plaintiff’s solicitors that the Defendants agreed but needed more time to provide answers to the Request (Answers). The Plaintiffs agreed to give the Defendants until 7 January 2019 to provide their Answers.

1 Feb 2019

The Plaintiffs applied and the Court ordered the Defendants to serve their Answers within the next 28 days.

8 Mar 2019

The Defendants applied and were granted a time extension until 8 April 2019 to serve their Answers.

18 Mar 2019

The Defendants amended their Defence and Counterclaim.

12 Apr 2019

The Defendants applied and the Court granted another extension of time on an unless basis: “Unless the 1st to 3rd Defendants do file and serve their Answers of the Request for Further and Better Particulars of the Defence and Counterclaim dated 23rd November 2018 by 4:00 pm on 29th April 2019, the 1st to 3rd Defendants’ Amended Defence and Counterclaim dated 18th March 2019 be struck out.” (Emphasis added) (Unless Order)

26 Apr 2019

The Defendants filed and served their Answers, but 16 out of 41 answers either stated “Not entitled, as the Request is for evidence” or “Not entitled, as the Request is a matter of evidence” (Nil Answers”).

4 Jun 2019

The Plaintiff applied to strike out the Defendants’ Amended Defence and Counterclaim (Strike Out Application) on the ground of non-compliance with the Unless Order.

On 12 November 2019, the Strike Out Application was heard and the Court found that the Defendants had failed to comply with the Unless Order by providing the Nil Answers. Therefore, it was ordered that those paragraphs in the Amended Defence and Counterclaim to which the Nil Answers and corresponding requests related be struck out.

What was the nature of the Unless Order?

The core issue before the Court was the nature of the Unless Order. The Defendants argued that it was a “time order”, whilst the Plaintiff argued that it was an order which prescribed the mode of compliance. If the Defendants were correct, it would mean that the Unless Order only required the Defendants to simply give a response within the time stipulated, either by giving substantive answers or raising objections like the Nil Answers. If the Plaintiff was correct, then the Defendants were required to provide substantive Answers.

The Court agreed with the Plaintiff and held that the Unless Order was an order specifying the mode of compliance because:

(1)

the terms of the Unless Order clearly and unambiguously state that what is required is the Defendants to provide “answers” and not merely a “response” to the Request.

(2)

at all times, the Defendants had agreed to provide Answers and merely sought more time to do so. The Unless Order should be understood and construed against this context.

The Defendants also argued that they had provided their Answers in good faith, and this amounted to adequate compliance with the Unless Order. The Court applied Top Point Ltd. v K&L Gates (a firm of solicitors) ( HCA 1088/2011) and rejected this argument, explaining that to comply with an order prescribing the mode of compliance, the party required to take action must have done something which can fairly be capable of being described as the thing required to be done. If there is no compliance, the adequacy of compliance does not come into play. In this case, the Nil Answers were not in compliance with the Unless Order.

Commentary

It is common for parties to proceedings to request their adversaries to provide further and better particulars of pleadings in order to properly prepare their own case. The requesting party of course wants to obtain as much information as possible, whereas the requested party may want to make objections to the propriety of the requests. Any such objections should be made promptly and expressly, so that, where necessary, a hearing can be fixed to argue the matter.

If the party being requested to provide particulars requires further time to prepare their response, they should be reminded to expressly reserve their right to make objections. Parties should also pay particular attention to the wording of the order made requiring provision of particulars i.e. does it require a "response" to the request, in which case "Nil Answers" may be permitted or does it require an "answer", in which case they will not?