Wang Ho Yin Patrick v. Fu Chun Lung and Another

DCCJ 4814/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4814 OF 2014

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BETWEEN

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D E C I S I O N

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1.The 2nd defendant applies for leave to amend the defence and counterclaim by way of summons filed on 13 July 2016.

2.This application was taken out after an action has been set down on 29 March 2016, pursuant to the direction of Master Daniel Tang dated 11 March 2016. No directions prohibiting the parties to take out interlocutory applications in the same order save in paragraph 9 thereof, the learned Master so ordered,

“Any interlocutory application made after setting down shall be listed for hearing before a trial judge unless the court directs otherwise.”

3.The 1st and 2nd defendants were represented by a firm of solicitors Messrs Edward Lau, Wong & Lou at the commencement of trial. On 30 May 2016 the 2nd defendant changed his solicitors to Messrs Yaddy Cheung & Co. The present application was taken out 2.5 months after the change of solicitors.

4.Although the 2nd defendant did not file an affirmation to explain reasons for taking out late application at a late stage, it is not unusual, as submitted by Mr Cheung, the legal representatives will have a different view of the pleadings after a change of the legal team.  Nevertheless, the court should not endorse late applications.

5.Ms Gwilt has correctly submitted two authorities on point, where I accept it must be the general rule in deciding whether amendment should be granted at this stage: see Li Xiao Yun v China Gas Holdings Limited CACV 38/2013 (unreported); and Waddington Limited v Chan Chun Hoo Thomas HCA 3291/2003 (unreported). Ms Gwilt has also submitted, according to Practice Direction 5.2, “late applications may be dismissed on the basis of delay alone”, which I accept.

6.In the premises, even though the 1st and 2nd defendants do have a valid reason to justify there have been exceptional circumstances in taking out this late application, I would not allow it for a reason of that the contents of the amended defence embraced new facts and assertions: see paragraph 6(e) (vi) to (viii); paragraph 11 and 21 of the draft re‑amended defence and counterclaim of the 2nd defendant. 

7.If this application is granted, the plaintiff is entitled to amend the amended reply, and the party has grounds to adduce further witness statements.  Ms Gwilt makes it clear that application for further and better particulars and discoveries are expected. As a result, the trial date will be inevitability derailed. 

8.For the foregoing reasons, the 2nd defendant’s summons be dismissed with costs.

Ms Angela Gwilt, instructed by Huen & Partners, for the plaintiff

Ms Chan Oi Ha, of Edward Lau, Wong & Lou, for the 1st defendant

Mr Harrison C H Cheung, instructed by Yaddy Cheung & Co, for the 2nd defendant