Arotamas International (HK) Ltd v. Melofield Nursery and Landscape Contractor Ltd

DCCJ 309/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 309 OF 2015

--------------------

--------------------

--------------------

DECISION

--------------------

Introduction

1.This case was set down for trial on 7 June 2016.  Today is the pre-trial review and the trial shall commence on 5 December 2016.

2.As late as 20 October 2016, the defendant took out a summons seeking leave to amend the defence and counterclaim and to file a second supplemental witness statement of Lau Sum Yan and the witness statement of Leung Lai Chiu.  No affirmation was filed in support of the application.

3.The proposed amendment is adding a claim of additional fee for maintaining the plants from 1 September 2014 at the rate of $3,750 per month (“the additional costs amendment”) and for correction of errors at paragraphs 14 and 20.

4.The application is opposed by the plaintiff.

Legal principle

5.Bharwaney J in Parsad v Great Wealthy Engineering Co Ltd [2012] 3 HKLRD 705 had this to say:-

“5. ... whether or not to accede to a party's late application to rely on a witness statement deposing to relevant and admissible facts, must be exercised within the ambit of the Court's management power and in the light of the objectives of Civil Justice Reform, including the need to ensure the cost-effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

6. ... The Court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the late application.”

Discussion

6.Mr Val Chow, counsel for the defendant, submitted that the additional costs amendment is only a natural extension to the maintenance fee up to 20 June 2014 which is already part of the counterclaim and the other amendments are for correction of errors. I think the matter is not as simple as that.

7.In the defendant’s timetabling questionnaire filed on 30 May 2016, the defendant confirmed at F5 that there was no other outstanding interlocutory application.  In saying so, it must mean that the defendant’s legal representatives had reviewed the case of the defendant and were satisfied that the case was ready for trial.

8.In respect of the additional maintenance costs, it should have been known at the pleadings stage. There is a lack of explanation from the defendant as to why the amendment was not sought before setting down.

9.Due to the proposed amendments, the defendant has to adduce additional evidence, namely, the second supplemental witness statement of Lau Sum Yan and the witness statement of Leung Lai Chiu together with other documentary evidence, which were not disclosed in the defendant’s list of documents already filed.  The new documents consist of 8 pictures, an unstamped tenancy agreement and 24 pages of invoices.

10.If the application is allowed, the plaintiff will no doubt be required to deal with the additional costs amendment, both factually and in law.  The trial is only 6 weeks away less 1 day.

11.Mr Billy Ma, counsel for the plaintiff, quite fairly, does not oppose to the proposed amendment at paragraph 20, which is the correction of a typographical error.

12.On the other hand, he is opposing to the proposed amendment at paragraph 14 and indeed the additional costs amendment.

13.I shall deal with the proposed amendment to paragraph 14 first.  I am satisfied that they are clarifying the exact time when the podocarpus and camellias were transferred to their present location.  They should be allowed.

14.In relation to the additional costs amendment, Mr Ma submitted that it came as a surprise to the plaintiff as the counterclaim is thereby drastically increased.  The plaintiff will need to seek further and better particulars as to how the defendant arrives at the calculation.  The plaintiff will also need to seek specific discovery in relation to the documentary proof of payment to Sun Fung Garden Ltd (“Sun Fung”) because only the invoices of Sun Fung are disclosed.

15.I accept that the concerns of the plaintiff are justified by reason of the lateness of the additional costs amendment.  If the amendment is allowed, the plaintiff should be allowed to deal with the factual aspects of it by way of further and better particulars and specific discovery applications.  This will definitely disrupt the scheduled trial dates which is a milestone event.

Conclusion and order

16.For the foregoing reasons, I only allow the proposed amendments to paragraphs 14 and 20 of the defence and counterclaim and the filing of supplemental witness statement of Lau Sum Yan and the witness statement of Leung Lai Chiu, if any, which are necessitated by the said amendments.

Costs

17.I order that the defendant shall pay the plaintiff costs of this application with certificate for counsel, to be taxed if not agreed.

18.For taxation purpose, the defendant’s summons is concluded at 11:05 am.

Mr Billy Ma, instructed by Tse Yuen Ting Wong, for the plaintiff

Mr Val Chow, instructed by Zhong Lun Law Firm, for the defendant