Foo Tak Ching the Manager of “Wah Yan Mo Fan Heung V.Tang Man Kit Otherwise Known As Tang Man Kit, Terry

HCMP 3361/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3361 OF 2014

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DECISION
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1.This is an application of the defendant to file a further affirmation in reply to the reply affirmation of the plaintiff.  The affirmation to be adduced is exhibited to the supporting affirmation for the purpose of this application.  It consists of eight paragraphs. 

2.Mr Szeto helpfully took me through the contents of these eight paragraphs of the said affirmation.  The second paragraph seeks to include a new allegation of the non-compliance with the notice requirement in regard to a purported meeting held in August 2014 wherein the defendant was allegedly removed as the manager of the Heung, namely, Wah Yan Mo Fan Heung. 

3.Mr Szeto accepted that this is a new allegation because prior to this affirmation only the notice requirement of an earlier meeting in October 2013 is put in issue by way of affirmation evidence. Indeed, there was a letter sent by the defendant solicitors to the plaintiff solicitors (“the Letter”) stating that the defendant would argue that the notice requirement of the 2014 meeting was met at the substantive hearing.

4.Mr Szeto explained that since these are OS proceedings, issues are not identified by way of pleadings and so it is necessary for the defendant to raise the allegation of the non-compliance with the notice requirement in respect of the

August 2014 meeting by way of an additional affirmation. 

5.It is the plaintiff’s case that the defendant was validly removed as a manager at the 2013 meeting, and the removal was confirmed, rectified and/or clarified at the 2014 meeting by another the resolution of its members.

6.Since the plaintiff now relies on the resolutions, it is for the plaintiff to first prove the validity of such resolutions, including the fulfilment of the requisite notice requirements.  I do not find it necessary for the defendant to put in an additional affirmation to raise his challenge to the notice requirement of the 2014 meeting in the circumstances. In any event, the Letter would suffice.

7.As regards to paragraph 3 to paragraph 6, they concern the membership of Heung.

8.In the first affirmation of the plaintiff, the plaintiff explains the attendance of the members of the Heung at the two meetings.  It was pointed out that those members attending the two meetings were indeed members of the Heung in accordance with the member lists complied by the defendant when he was the Secretary of the Heung in 1984.  It was already in the contemplation of the plaintiff that the composition of the attendees at the two meetings would be challenged. 

9.In the first affirmation of the defendant, he reiterated the accuracy of the 1984 and 1989 members’ records and he insisted that they should be adopted as the reference and the basis of consideration for proof of membership of the Heung.  He was in a position to further explain the composition of membership, but he did not.  In the affirmation intended to be adduced, there are further explanations about the composition of the membership of the Heung. 

10.Mr Szeto seeks to persuade me that it is necessary to fill in the

evidential loops in the parties’ evidence filed in regard to the membership of the Heung.  He submits that this new information is necessary because new allegations about the membership of the Heung are made in the reply affirmation of the plaintiff.

11.I cannot agree.  I have studied the reply affirmation of the plaintiff.  It only further explains the composition of the membership without making any departures from the 1984 and 1989 member lists. Had the defendant found it necessary to explain in detail the composition of the membership of the Heung, he should have done so in his affirmation in opposition. In any event, I do not think it is necessary.

12.In regard to those documents referred to in the first affirmation of the plaintiff which are not actually exhibited thereto, I agree with Mr Szeto that they should be included in the evidence for the purpose of the substantive hearing of the OS.  But those documents could be included by consent without necessitating a further affirmation. 

13.I also studied other matters stated in these paragraphs and I believe those matters could be canvassed by way of legal submission at the substantive hearing.  All in all, I do not find the affirmation intended to be adduced by the defendant to be necessary for the fair disposal of the matters before the court.

14.In the premises, I refuse the application of the defendant.

15.Costs should follow the event, Costs of this application should be to the plaintiff, to be taxed if not agreed. 

(Discussion as to summary assessment)

16.So let me take a broad-brush approach. I only allow HK$25,000 - all inclusive.  That is my assessment.

Mr Alvin Chong, instructed by Au, Thong & Tsang, for the plaintiff

Mr Patrick Szeto, instructed by Shum Wong & Co, for the defendant