Hsu Kim Ming, The Personal Representative of the Estate of Lo Sook Hing, Deceased v. Chui Yuk Fei

DCMP 230/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 230 OF 2015

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DECISION

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Introduction

1.This case was set down for trial on 28 July 2016.  Today is the pre-trial review and the trial shall commence on 17 January 2017.

2.As late as 11 November 2016, the defendant took out a summons seeking leave to amend the defence and counterclaim.  No affirmation was filed in support of the application.

3.In essence, the proposed amendment is the inclusion of the concept of common intention constructive trust in the place of the trust originally alleged in the defence.

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 Tony Ko, counsel for the plaintiff, opposed the application on the bases that it was a late application; no explanation was put forward for the lateness; that trust was already pleaded in the defence and counterclaim and the proposed amendment at p4 was adding new factual basis in support of the constructive trust by common intention.  However, Mr Ko has assured that even if the amendment is allowed, there will still be sufficient time for the plaintiff to amend his pleadings and to file further witness statements, if any, before the scheduled trial.

7.Mr Tim Wong, counsel for the defendant, said the amendment is merely putting the house in order by pleading clearly the type of trust the defendant is relying on.  Further, the proposed amendment at p4 is adopting the wordings in the witness statement of the defendant at para 19. 

8.Although it is a late application, it seems to me that the proposed amendment has added nothing new to the original defence and counterclaim.  I do not see any prejudice would have been done by allowing the amendment.  Most importantly, the scheduled trial dates would not be thereby affected.

Conclusion and order

9.Therefore, I allow the defendant’s application.  The plaintiff shall have 28 days from today to amend his reply and defence to counterclaim and to file further witness statements, if any, which are occasioned by the defendant’s amendment.

Costs

10.I order that the defendant shall pay the plaintiff the costs of and occasioned by this application in any event, with certificate for counsel, to be taxed if not agreed.

11.For taxation purpose, the defendant’s summons is concluded at 10.25 am.

Mr Tony Ko, instructed by Danny Ma & Co, for the plaintiff

Mr Tim Wong, instructed by Leung, Tam & Wong, for the defendant