The Liquidator of Wing Fai Construction Co Ltd (in Liquidation) v. Yip Kwong Robert and Others

HCCW 735/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) PROCEEDINGS NO 735 OF 2002

____________

____________

__________________________________

R E A S O N S   F O R   D E C I S I O N

__________________________________

1.On the afternoon of Day 1 of the trial of these proceedings (13 October 2016), the Applicant submitted and served 2 pages of "voluntary particulars" referring to two alleged additional payments out of the company's funds. I indicated that as the purported effect of the particulars would be to enlarge the alleged shortfall and the net loss claimed, it could not be done simply by giving voluntary particulars and that if the payments were to be pursued the claim had to be amended. On Day 2 of the trial, the Applicant applied to amend further his Re-Re-Amended Points of Claim for that purpose. Although no draft amended pleading was produced, I treated the application as being made essentially for the purpose of adding the two payments to the schedule to the Re-Re-Amended Points of Claim and amending the aggregate figures in paragraphs 18, 20 and 22, and paragraph 2 of the prayer for relief, of that pleading.

2.I dismissed the application for reasons to be handed down.  These are my reasons.  The application was in my view far too late.  There was no acceptable explanation for the lateness.  As Ms Chan SC confirmed, the documents relating to those two payments that the Applicant proposed to rely on had been in his possession since 2014.  The Points of Claim had since that time undergone two amendments, once in June 2015 and once in September 2016, specifically in relation to the payments out and payments in and the aggregate alleged shortfall.  There was no acceptable explanation why the two payments are only now, at the trial, proposed to be added into the claim. 

3.There was an order requiring all interlocutory applications to be taken out by some time in the summer of 2015.  There is no explanation why that was not complied with in relation to these two payments. Furthermore, the parties have each engaged accounting experts to review the documents and advise on whether individual payments in and payments out should be included.  This resulted in an agreed direction given on 18 August 2016 that the Applicant and the 2^nd respondent provide a set of schedules identifying the documents in the trial bundles which they contend relate to the payments and that they state whether the payments are admitted or denied with grounds for denying where appropriate.  The correspondence exchanged and the resultant schedules following that direction did not refer to the two additional payments in question.

4.Ms Chan argued that the additional two payments (which she proposed to number as 4A and 4B respectively) are similar in nature to items 1 to 6 in the existing list of payments relating to Famous Capital, and that the 2^nd respondent's defence or contention is likely to be the same as her case on those items and that there would therefore be no prejudice to her.  I do not agree.  Unless and until the 2^nd respondent, her legal and other advisers and accounting expert had been given a proper opportunity to examine all relevant documents, they could not be sure what their response should be.  But to require them to carry out that exercise in the middle of the trial, when a number of the applicant's witnesses had to be cross-examined, some of whom only recently subpoenaed or tendered for cross-examination, is itself prejudice.

5.For these reasons I refused leave to amend.

Ms Linda Chan SC and Ms Theresa Chow, instructed by Howse Williams Bowers, for the applicant

Mr Ng Man Sang Alan and Mr Foster Yim, instructed by Wan Yeung Hau & Co, for the 1^st respondent

Mr Barrie Barlow SC and Mr Chan Pat Lun, instructed by Haldanes, for the 2^nd respondent  

The 3^rd respondent was not represented and did not appear