Ian HC Chin J:

This appeal arose out of the setting aside of a judgment entered on 22 January 1999 against the defendants who are owners of the vessels named Giwi, Giwi II, Gikim, Giswee, Gisoon, Gijoo and Gihuat. Judgment was entered on the ground that the defendants had failed to comply with an "unless order". The defendants applied to set aside the judgment on the ground, inter alia, that the said judgment was entered irregularly since there was no default on the part of the defendants in complying with the two orders. The two orders, both dated 13 October 1998 ordered the defendants to within 21 days from the date of the order serve the plaintiffs further and better particulars of certain paragraphs of the defence and answer certain interrogatories to be served on them. By 6 January 1999, the further and better particulars and the interrogatories were not served. However, there was no question of noncompliance of that order concerning the answer of interrogatories since the interrogatories were not served. Be that as it may, the plaintiffs, being the owners of and being persons interested in the cargo, applied for an "unless order" on the ground that the defendants had failed to comply with the two orders. Consequently, the court on 6 January 1999 made, inter alia, the following order:

unless by the 20th day of January, 1999, the Defendants comply with the (2) Orders of the Court, both dated the 13th day of October 1998, in particular, the supply of Further and Better Particulars and the Answers to the Interrogatories, as ordered; the Defence be struck out and the Judgment be entered for the Plaintiff with costs and interests; 205

Those documents were served on the plaintiffs' advocates on 21 January 1999 being one day later than the date mentioned in the "unless order" but it is common ground that in so far as the date is concerned it is in order as January 20 happened to be a public holiday and hence service was permitted the following day. However, Mr. Albert Tang, learned counsel for the Plaintiffs, submitted that in order for service to be reckoned as being done on January 21 it must be done before 4.00 p.m. on January 21 as otherwise it will be regarded as having been done the following day. He relied on O. 62 r. 8 of the Rules of the High Court 1980. There is dispute as regards the time of service, with the defendants filing an affidavit to say that the server had arrived at the plaintiffs' advocates office at 3.57 p.m and had served the documents at that time. The plaintiffs on the other hand filed an affidavit to say it was served at 4.04 p.m. which time was denoted on the proof copies together with the words "without prejudice". The plaintiffs argued that it was more likely than not that the time of service was 4.04 p.m. because there was no protest when it was so denoted on the proof copies that were given back to the defendants' server. However, Mr. Tang overlooked one notorious fact which is that no two time pieces will show exactly the same time with the result that different time-pieces may show varying times with a difference of as much as several minutes, depending on how fast or how slow it is running. This may bring about the result that both deponents may be telling the truth according to what their time-piece showed. Since the possibility exists that the defendants' server may be telling the truth and the conflicting time may be due to the respective time-pieces showing different time, I cannot dismiss the defendants' affidavit assertion as being improbable. The plaintiffs have to establish more than what is shown if the court is to conclude on the affidavit evidence that the plaintiffs' version of service being done at 4.04 p.m. is to be preferred to that of the defendants. Therefore, I will accept that the service of the documents was done within time at 3.57 p.m.

Mr. Tang then argued that it was still not within time because the documents though served on January 21 were not filed with t