Soshila Keswani v. Motiram Keswani

DCCJ 579/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 579 OF 2013

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DECISION

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1.This is an application by the plaintiff for leave to file and serve her witness statement.

Background

2.The plaintiff is the defendant’s sister.  Their late father (“the Father”) used to be the owner of a 6-storey (comprising G/F and 1-5/F) building in Kowloon.  By a will made by the Father in 1960 (“the 1960 Will”), the Father bequeathed the G/F of the building to the plaintiff and the 1-5/F (the 1-5/F are collectively referred to as “the Property”) to his wife (“the Mother”).  By a subsequent will made in 1961, the Father bequeathed the entire building to the Mother. However, as this subsequent will was witnessed by only one witness, it was void and had no effect.  Consequently, the 1960 Will was proved upon the Father’s death in 1961.  By an assignment dated 22 October 1968, the entire interests in building were assigned to the plaintiff and the Mother as tenants in common, with the former holding 2/12 of the interests and the latter holding the remaining 10/12.

3.The Mother died on 23 May 2001. Pursuant to her last will, which was made in September 1991 (“the Mother’s Will”), the Mother bequeathed the Property to the defendant and the three others sons.  The plaintiff, the only daughter, was not a beneficiary under the Mother’s Will.  The plaintiff did not accept that the Mother’s Will was valid. According to her, the Mother had been suffering from some mental illness since 1950’s or 1960’s.  To resolve the disputes, the five siblings entered into a Deed of Family Arrangement (“the Deed of Family Arrangement”) on 13 June 2002.  Clause 2 of the Deed of Family Arrangement provided that the Property should be held by the defendant on trust for the five siblings in equal shares.  By a Vesting Assignment (“Vesting Assignment”) dated 3 September 2002, the Property was vested in the five siblings as tenants in common.

4.By this action, the plaintiff, as one of the co-owners of the Property, claims that the defendant as wrongfully withheld payment to her of her share of the rental incomes from the Property.  In his Defence, the defendant claims that the Deed of Family Arrangement and Vesting Assignment are void and have no effect because they were made under a mistake common to the parties.  In his Amended Defence and Counterclaim, the defendant introduced a new line of defence, namely, that the Deed of Family Arrangement and Vesting Assignment are liable to be rescinded because of some misrepresentations made by some alleged agents of the plaintiff.

5.The issues between the parties are broadly speaking whether the Deed of Arrangement and Vesting Assignment were validly made.

6.Witness statements were exchanged after close of pleadings.  By a summons taken out on 26 January 2015, the defendant applied to strike out all the 7 witness statements filed on behalf of the plaintiff.  On 20 May 2015, Deputy District Judge LC Cheng struck out all the 7 witnesses on the ground that their contents were wholly irrelevant to the issues to be decided. 

7.On 2 July 2015, the plaintiff applied for leave to file a witness statement.  The witness statement that she sought to file was a vastly improved one.  However, the plaintiff withdrew her application at the call-over hearing on 13 July 2015.

8.About 6 months later, on 7 January 2016 the plaintiff took out the present summons.

The defendant’s opposition

9.The defendant opposes the plaintiff’s application on the grounds that there has been unjustified delay on the part of the plaintiff and that certain parts of the plaintiff’s witness statement are irrelevant and/or not within the plaintiff’s own knowledge.  In opposing the plaintiff’s present application to file a witness statement of her, the defendant is in effect seeking an order that the plaintiff should be debarred from adducing any evidence at trial.

Delay

10.It is not entirely clear what caused the plaintiff to withdraw her previous application for leave to file a witness statement in the call-over hearing on 13 July 2015.  According to her, she was confused by the defendant’s solicitors who had told her that her witness statement was inadmissible because it contained irrelevant information. Without being told which paragraphs of her witness statements were objectionable, she somehow formed the view that she should withdraw her application.  Also, unaware of any deadline, she believed that she could take her time to perfect her witness statement.  It was not until later in the year that she was advised by a lawyer friend that she needed to reinstate her application in order to be able to adduce her evidence at trial that she took out the present summons.

11.Mr Wong, counsel for the defendant, has drawn my attention to O 1A, r 1(b), O 1A, r 4(2)(g) and (l) of the Rules of the District Court (“RDC”) and submitted that the court shall actively manage a case to ensure that it is dealt with as expeditiously as is reasonably practicable. No doubt the court needs to deal with cases expeditiously and cost-effectively, the court also bears in mind that the primary aim in the exercise of case management power is to secure the just resolution of disputes in accordance with the substantive rights of the parties (see O 1A, r 2(2) of RDC).

12.In considering whether indulgence should be granted to a party who is said to be guilty of delay, the court will take into account the length of the delay, reasons for delay, prejudice to the parties and all the circumstances of the case.

13.In this case, Mr Wong does not take issue with the plaintiff’s aborted application to file a witness statement in July 2015.  Apparently, Mr Wong does not consider the application a late or inexcusably late one.  Given that the plaintiff was then (and still is) acting in person, I consider that she deserves some time to reconsider her position. After all, the making of a witness statement in a case like this that involves complicated issues of common mistake and misrepresentation is no easy task to a layman.

14.No doubt there was a period of inactivity on the part of the plaintiff.  However, there was also a period of inactivity of the same length on the part of the defendant.  For 6 months the defendant did nothing.  No summons was issued for a case management conference or an unless order against the plaintiff.  In any event, even if the plaintiff is guilty of some delay, the overriding concern remains whether the delay has caused any real prejudice to the defendant.  In this case, there has been no suggestion that the defendant has suffered any prejudice.  Although the reasons given by the plaintiff for her inactivity are not entirely satisfactory, bearing in mind the interests of the administration of justice, I consider that this is not an appropriate moment to debar the plaintiff from adducing evidence.

Contents of the plaintiff’s witness statement

15.The overriding features of the written statements of the witness are: (1) that they are intended for use at the trial; and (b) that they relate to issues of fact to be adduced at the trial.  Accordingly, the written statements of such a witness must contain only such material facts as the witness is able to prove of his own knowledge that are relevant to the issues to be tried: Hong Kong Civil Procedure 2016, 38/2A/6.

16.In this case, it is the validity of the Deed of Family and Vesting Assignment that is in issue.  What is said in the plaintiff’s witness statement about the Mother’s Will is irrelevant.  Also, the plaintiff’s statements must be confined to matters of fact and must not contain her personal opinion of her brothers or matters that she is unable to prove of her own knowledge.  Hence, I take the view that the following offending parts of the witness statement should be struck out:-

Para no	Offending parts	Remarks
7	“all his uncles and”   “Hiro therefore was the one at that time needed to … for that past 30 years since 1970’s.” [For the avoidance of doubt, the word “me” in line 2 will remain.]	Not within P’s knowledge
7	“and Hiro was the one that had communicated and instructed Miss Juliana Chu of “Ho & Wong”… all 4 brothers full names, ages, ID/Passports Nos. and address for the documents which that.”   “Hiro was the one and only one that had handled… mother’s asset in 5 equal shares.”   [For the avoidance of doubt, the sentence “I haven’t involved in all these nor that I have instructed Miss Chu of “Ho & Wong” to arrange all the documents being signed by me and the 4 beneficiaries at all” will remain.]	Not within P’s knowledge
10	“, which he did.” [at line 5]	Not within P’s knowledge
10	“This Will was made one month after …Why wasn’t the Will being made between 1961 to July 1991 because at that time Motiram was the one collecting and using all my ground floor rentals.”	Irrelevant to the issues
11	“, as they wanted to be fair, knowing that” [For the avoidance of doubt, the sentence “I was the one and only one taken care of my mother throughout her life till the day she passed away”will remain.]	Not within P’s knowledge
11	“and also knowing that my psychiatric mother … signing the Will on the 27 September 1991).”	Irrelevant to the issues
11	“Therefore Hira had told Hiro … 5 equal shares.”	Not within P’s knowledge
12	“Hiro did as what Hira had told him to do … signed on the 11 April 2002”	Not within P’s knowledge
13	“Then in May/June … item 4 page 7 of my list of documents)   “ it was Hiro who had … item 5 page 7 of my list of documents) which” [The surviving sentence should then read “in August/September Ramchand came to Hong Kong, I haven’t met him while he was in town at that time.]	Not within P’s knowledge
16	“Most important was that Motiram as the executor … All 4 brothers had signed willingly and intentionally to include me as one of the beneficiaries in these two documents”	Not within P’s knowledge
17	“The lawyer’s fees for the whole case …of the mother’s assets since 1961.”	Not within P’s knowledge
Unnumbered para at p 7	“and that the lawyer’s fees for the whole case … since 1961.”	Not within P’s knowledge

17.The defendant also seeks to strike out the unnumbered paragraph at p 10 of the witness statement on the ground that the “valuation” of rental income is an issue for expert.  However, the “valuation” complained of is nothing but the plaintiff’s own calculation of her alleged losses based on the property tax assessment notices issued by the Inland Revenue Department.  There is nothing objectionable in the paragraph.

18.I therefore make the following orders:-

(1)   The plaintiff do have leave to file and serve her witness statement as per the draft attached to her summons dated 7 January 2016 with the deletion of the offending parts as set out in paragraph 16 above within 28 days.  Unless the trial judge directs otherwise, such statement shall stand as evidence in chief of the plaintiff;

(2)   There be no order as to costs.

19.In making the above costs order, I am mindful that the plaintiff is granted leave to file her witness statement and the defendantmanages to have several parts of her witness statement struck out.  I agree with the observation made by Mr Wong at the end of the hearing that it would be fair to the parties that the court makes no order as to costs, and I so order.  Unless either party applies to vary the costs order, the above costs order, which is an order nisi, shall become absolute after 14 days.

20.I thank Mr Wong for his assistance.

The plaintiff appeared in person

Mr Thomas Wong, instructed by Wilkinson & Grist, for the defendant