Skyrun Light Industry (Hong Kong) Co Ltd v. Swift Resources Ltd and Others

HCA 1278/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1278 OF 2014

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REASONS FOR DECISION

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1.This is an application by the plaintiff (“Skyrun”) by a summons issued on 31 August 2016 for:-

(1)  leave to join Mr Guo Ming Fu (“Mr Guo”) as a co-plaintiff in this action; and

(2)  leave to amend the statement of claim (“SoC”) as per the draft amended SoC annexed to the summons.

2.Skyrun in the original SoC pleaded that the defendants owed it money under a 1st USD Agreement and a guarantee both dated 8 August 2011, a 2nd USD Agreement, a 1st RMB Agreement and a 2nd RMB Agreement. 

3.Skyrun’s summons also asked for the abandonment of the claims pursuant to the 2nd USD Agreement, 1st RMB Agreement and 2nd RMB Agreement and discontinuation of the action as against D3 and D4.  The abandonments and discontinuation were effected by a consent order dated 26th February 2016 leaving the joinder and amendments to be argued out. 

4.After the consent order, the action is now for US$12 million as against the 1st and 2nd defendants (“the defendants”) pursuant to the 1st USD Agreement and as against the 2nd defendant (“Ms Ma”) pursuant to the Guarantee.

5.Skyrun has filed an affirmation of Mr Tang Tsz Pun, the handling solicitor of this action for Skyrun, dated 23^rd September 2016 in support of the application.  The defendants filed an affirmation of Mr Adrian Yeung, the handling solicitor of the action for the defendants dated 13^th December 2016 in opposition (the action against D3 and D4 has been discontinued).  Skyrun then filed a 2nd affirmation of Mr Tang dated 10^th January 2017 in reply.

Skyrun’s original case

6.The original SoC pleaded that the 1st USD Agreement was a debt repayment agreement.  It pleaded the agreement as follows:

“2.    On about 8^th August 2011, SLIHK (P) and SRL (D1) and Ms. Ma (D2) entered into an agreement that SRL (D1) and Ms. Ma (D2) agreed to repay to SLIHK (P) a debt of US$12 million by instalments in the following manner (“1^st USD Agreement”):

(a)  A sum of US$1,200,000 would be repaid on 30^th December 2011;

(b)  A sum of US$4,000,000 would be repaid on 30^th June 2012;

(c)  A sum of US$1,500,000 would be repaid on 30^th September 2012;

(d)  A sum of US$2,300,000 would be repaid on 30^th December 2012; and

(e)  A sum of US$3,000,000 would be repaid on 26^th October 2013.”

7.It further pleaded to the guarantee given by D2 as follows:

“On about 8^th August 2011, Ms. Ma (D2) provided SLIHK (P) with a personal guarantee and/or warranty that in the event SRL (D1) and Ms. Ma (D2) failed to fully repay the said debt of US$12 million, Ms. Ma (D2) shall be personally liable to repay the interest accrued on the said debt of US$12 million at daily rate of 1/1000 (i.e. roughly 36.5% p.a.) from the due dates up to the date of full payment.”

The terms and parties of the 1st USD Agreement

8.However, the terms of the 1st USD Agreement show that it is not a debt repayment agreement.  The English translation of its preamble says:

“Concerning a cooperation between the Party A and Party B on trees hewing, processing and export in respect of a rubber plantation of 3,200 hectare in Cambodia.

Since the commencement of the project, Party B turned down the proposal and request made by the Party A to retain 6-8 persons from the Mainland (composing of professional technicians and managerial personnel) to form a management team. As a result, there were no professional technicians, who were of practical skill, competent, experienced, of good quality, trustworthy and responsible, to build a possessing factory of the rubber plantation. This led to purchase of lagging and poor facilities and building of improper kiln, thus led to a consequence of serious wastage. Accordingly, it was impossible to manufacture and produce rubber plants of proper standard. Also, Party B did not try her best endeavour to effectively operate the project, thus there was slow progress of the project, which fell short of the Parties’ agreed estimate on the time to put into production. Meanwhile, there has been serious difference of position on rebuilding the existing factory, change of choices in facilities, production scale, business management, retaining technician and managerial personnel, sale channel, incorporation of companies, setting up books of accounts, distribution of funds and etc. Parties tried their best endeavour to resolve the difference but could hardly reach an agreement. For the sake of faster, better and more efficient proceedings of the project for cooperation and to conform to Party B’s request for public listing of the project, the Parties have reached this agreement after Parties’ serious consideration and amicable negotiation.” (emphasis supplied)

9.The preamble shows that the 1st USD Agreement is an agreement that settled the differences of the parties over their joint venture in the working of a rubber plantation in Cambodia.

10.Furthermore, the agreement states that the parties thereto are:

“Party A: Skyrun Light Industry (Hong Kong) Company Limited (P) & Mr. Guo Ming Fu

Party B:   Swift Resources Limited & Madam Ma Muk Ying (D2)”

Both Skyrun and the 1st defendant (“SRL”) applied their chop marks at the bottom of the agreement.  Mr Guo also signed in his own capacity at the bottom under Party A whilst Ms Ma signed both on behalf of SRL and in her own capacity under Party B. Hence, both Skyrun and Mr Guo constitute Party A and both SRL and Ms Ma constitute Party B to the agreement.

Purposes of the proposed amendments

11.Skyrun by this application seeks to join Mr Gou as the 2nd plaintiff as he is a member of Party A in the agreement. 

12.Skyrun also wants to rectify the error of describing the 1st USD Agreement as a debt repayment agreement.  It seeks to describe the nature of the agreement and the associated undertaking and guarantee all dated 8 August 2011 by pleading new paragraphs 1(g), (h), (i) and (j) in the SoC as follows: 

“(g) Since the end of 2009, SRL (via the 2 Cambodia Companies), SLIHK (P) and Mr. Guo had negotiated to jointly acquire and invest in a rubber plantation named Rattanak Kiri Plantation (“Rubber Plantation”); as a result, SLIHK (P) and SRL (“the Parties”) had entered into an agreement dated 26^th January 2010 (“Joint Acquisition Agreement”). Under the Joint Acquisition Agreement, it was agreed that each side would pay US$9 million. The Joint Acquisition Agreement was subsequently varied by the Parties that SLIHK (P) was only required to invest and pay US$5,508,000, the full amount of which was already paid to SRL during the period from 3^rd February to 26^th October 2010. It was further agreed by Mr. Guo and SRL on 30^th July 2010 that Mr. Guo was allowed to jointly manage the business of the Rubber Plantation (“30072010 Agreement”). Pursuant to 30072010 Agreement, Mr. Guo sent his and SLIHK’s (P’s) staff to station and work at the Rubber Plantation. Subsequently, various disputes between SLIHK (P), Mr. Guo, SRL and Ms. Ma arose from the facts that SRL and Ms. Ma made a serious misrepresentation as to the size of the Rubber Plantation as warranted under the Joint Acquisition Agreement; and that SRL failed to perform its contractual duties under the 30072010 Agreement; and that SRL demanded SLIHK (P) to withdraw its management of the Rubber Plantation, in various breaches of 30072010 Agreement (“Disputes”). To fully settle the Disputes and to vary all relevant matters and terms under the Joint Acquisition Agreement, the 30072010 Agreement and an agreement dated 27^th June 2011 made between SLIHK (P) and Mr. Guo on one side and SRL and Ms. Ma on the other side (“27062011 Agreement”) respectively, SLIHK (P), Mr. Guo, SRL and Ms. Ma entered into the following agreements:-

(h) A written agreement dated 8^th August 2011 (numbered SKSW20110808HR) made between SLIHK (P) and Mr. Guo of one side and SRL and Ms. Ma of the other side (“Settlement Agreement”);

(i) A written undertaking dated 8^th August 2011 made by SRL and Ms. Ma of one side in favour of SLIHK (P) and Mr. Guo of the other side (“the Undertaking”); and

(j) A written guarantee dated 8^th August 2011 made by Ms. Ma in favour of SLIHK (P) and Mr. Guo (“the Guarantee”)”

13.Skyrun seeks to re-name the 1st USD Agreement in the proposed amendments as Settlement Agreement. 

14.The guarantee referred to in the proposed new paragraph 1(j) is the same guarantee pleaded in paragraph 3 of the original SoC.

15.In addition, Skyrun also seeks to provide in the amendments the particulars of the part payments by the defendants, the outstanding sums and interests accrued and due from the defendants.  These have been set forth in the witness statement of Mr Guo made for Skyrun in this action.

The defendants’ existing case

16.The defendants dealt with the 1st USD Agreement and Ms Ma’s guarantee in their existing defence as follows:

“I. THE ALLEGED US$12 MILLION LOAN

5. Save it is admitted that Skyrun and Mr. Guo Ming Fu (“Mr. Guo”), the 1^st Defendant and the 2^nd Defendant entered into an agreement on 8 August, 2011 concerning a conditional payment of US$ 12 million (the “US$ 12 Million Agreement”) (as addressed in paragraph 9 below), paragraph 2 is denied. It is specifically denied that the 1^st Defendant and 2^nd Defendant agreed to repay Skyrun a debt of US$ 12 million in the circumstances as pleaded in that paragraph or at all. The Defendants will rely on the matters pleaded below.

(A) Rubber plantation business

6. On or about 26 January 2010, Skyrun and the 1^st Defendant entered into a business venture (the “Joint Acquisition Agreement”) in order to invest in a 3,200-hectare rubber plantation in Cambodia (the “Rubber Plantation”). The Joint Acquisition Agreement contains, inter alia, the following salient terms:

甲方：开元轻工(香港)有限公司

乙方：兆业能源有限公司

甲乙双方经认真友好协议，決定投资收购柬埔寨3200公顷旧橡胶园的橡胶木砍伐、加工、出口业务，预计总投资额约为1800万美元。 卖方要求， 预交10%订金， 合计180万美元， 余款于2010 年3月27日前到位。 根据双方合作比例各占50%份额规定，甲、乙双方需各出资 90万美元作为该项目订金，期限为2010年1月底前到位，此据！

7. Since the Joint Acquisition Agreement was executed, the 1^st Defendant began to perform its duties thereunder. It is averred that the Joint Acquisition Agreement, however, was repudiated by Skyrun as a result of its failure in investing the requisite amount in the Rubber Plantation business.

8. In the premises, Skyrun had and/or has no ownership and control over the Rubber Plantation business. It is averred that Skyrun provided no and/or inadequate consideration to the alleged payment pursuant to the US$12 Million Agreement.

9. Further or alternatively, it is also agreed by Mr. Guo and the 2^nd Defendant that the US$12 Million Agreement shall be subject to the conditions that (i) Skyrun shall repay its share of investment in the Rubber Plantation as stipulated in the Joint Acquisition Agreement and (ii) the Rubber Plantation business got listed successfully. In other words, the payment obligation of the 1^st Defendant and the 2^nd Defendant under the US$12 Agreement, which is denied, will not be accrued before satisfying the two aforesaid conditions.

10. By reason of terms pleaded in paragraph 9 above, it is averred that the 1^st Defendant and 2^nd Defendant do not owe any money to Skyrun in respect of the US$ 12 Million Agreement.

11. As to paragraph 3,

(a) It is admitted that the 2^nd Defendant, as one of the guarantors, signed a guarantee agreement to provide a guarantee in respect of the US$12 Million Agreement on or about 8 August 2011.

(b) By reason of the facts and matters pleaded in paragraphs 5 to 10 hereinabove, it is denied that the 2^nd Defendant is liable to Skyrun for the repayment of the US$ 12 million and the interest rate in the terms as pleaded in that paragraph.

Save as the aforesaid, paragraph 3 is not admitted.”

17.The defence shows that the defendants have not misapprehended the nature of the 1st USD Agreement.  They did not regard it as a debt repayment agreement but dealt with it as an agreement that related to the joint venture of the parties in the working of a rubber plantation in Cambodia.  They also pleaded that it was a conditional agreement that was subject to the fulfilment of two conditions specified in §9 of the defence.

Skyrun’s witness statement

18.The parties exchanged witness statements on 3 May 2016.  Skyrun produced only one witness statement which was made by Mr Guo. 

19.Though Skyrun had not set out the correct nature of the 1st USD Agreement in the original SoC, Mr Guo did not commit the same error in his witness statement. He dealt with the agreement in the same way as in Skyrun’s proposed amendments.  Thus the case now presented by Skyrun in the proposed amendments to the SoC has already been set out in Mr Guo’s witness statement.  In addition, Mr Guo’s statement has set out two schedules of interests accrued on the outstanding sums.  The schedules of interests are also contained in the proposed amendments.

20.I therefore anticipated that Skyrun would not need to file any further witness statement to support its proposed amendments if leave to amend should be granted.  Indeed, Mr Hon, counsel for Skyrun, confirmed to me at the hearing that Skyrun’s proposed amendments to the SoC would not necessitate any further witness statement by Skyrun.  The witness statement of Mr Guo already exchanged with the defendants is sufficient.

The defendants’ Case in opposition to the application for joinder and amendments

21.Mr Adrian Yeung, the handling solicitor for the defendants, took a number of points in his affirmation.  The first is that Mr Guo should not be joined as the 2nd plaintiff. He referred to §5 of Skyrun’s reply which states that Mr Guo is not a party to the 1st USD Agreement.  He said it was Skyrun’s conscious decision to elect to sue by itself alone.  §5 of Skyrun’s reply states:

“It is averred that Mr. Guo and the 2^nd Defendant were and are not parties to the 1^st US$ Agreement nor to the Joint Acquisition Agreement; thus any conversation and/or agreement made between Mr. Guo and the 2^nd Defendant did not form any part of the agreement made between the Plaintiff and the 1^st Defendant, and do and did not bind the Plaintiff and the 1^st Defendant.” (emphasis added)

22.Mr Yeung also said that if Skyrun and Mr Guo intend to be one and the same party, there is an issue of redundancy in case Skyrun should be able to establish its claim against the defendants.

23.Mr Hui, counsel for the defendants, also referred to the beginning of Mr Guo’s witness statement where he stated:

“Skyrun 董事會已經授權本人代表Skyrun在此案作出供詞。”

(English translation - Skyrun has authorized me to represent it to give evidence in this case)

24.Mr Hui submitted that there is an inherent inconsistency for Mr Guo to say that he is a party to the 1st USD Agreement on the one hand and to say that he is an authorized representative of Skyrun on the other.

25.Mr Yeung also said that the defendants maintained that there was never any misrepresentation made to the Plaintiff and/or Mr Guo as to the size of the Rubber Plantation.  He said that Skyrun had re-characterised the “1st US$ Agreement” as a “Settlement Agreement” and broadened the ambit of its case.  By the amendments, Skyrun was also seeking to add a new dimension to the Settlement Agreement.

26.He said from the defendants’ point of view, the proposed amendments opened up a new dimension of factual disputes between the parties.  The defendants had to adduce more evidence on the genesis of the business dealings between the parties and whether the Settlement Agreement relied on by Skyrun was in truth a real settlement agreement. 

27.Mr Hui further submitted that if the 1st USD Agreement was indeed a settlement agreement as asserted by Skyrun in the proposed amendments, then Mr Guo could not justify his claim of US$12 million pursuant to the 1^st USD Agreement in his personal capacity.  He pointed out that the Joint Acquisition Agreement dated 26th January 2010 was made between Skyrun and SRL.  Mr Guo had deposed in §§4 to 11 of his witness statement to the dealings between Skyrun and SRL relating to the entering of the Joint Acquisition Agreement and the 1st USD Agreement.  Such evidence made it clear that the investments pursuant to the Joint Acquisition Agreement were made by Skyrun and not by Mr Guo himself.  Mr Guo has thus failed to provide consideration for the 1st USD Agreement.

28.Mr Yeung also said that since Skyrun and Mr Guo wanted to rely on additional documents to substantiate their claim, namely the “undertaking” and “guarantee” both dated 8 August 2011, the defendants also had to adduce additional evidence covering the “undertaking” and the “guarantee” and the reasons why the defendants are not liable thereunder.

29.Finally, Mr Yeung also said that the proposed amendments in paragraph 7 and Schedules 1 and 2 that set out the amounts paid by the defendants and interests accrued have been covered in Mr Guo’s witness statement and that renders the amendments unnecessary. 

30.Therefore, the defendants say that on the facts and evidence now presented, Skyrun has failed to justify the joinder of Mr Guo.  The joinder of Mr Guo should not be allowed.

Analyses and decision

31.Skyrun’s explanation for making the amendments is that the pleading in §5 of its reply is factually incorrect and Mr Guo is indeed a party to the 1st USD Agreement.  Skyrun and Mr Guo intend to amend the reply including §5 if the proposed amendments to the So C are allowed.  That is a natural consequence of amending the SoC.  The defendants cannot rely upon the plea in §5 of its reply which is factually wrong. 

32.In the proposed amendments, Skyrun and Mr Guo are suing jointly against the defendants jointly.  The 1st USD Agreement does say that Skyrun and Mr Guo together form Party A and the defendants together form Party B.  Skyrun and Mr Guo are now proposing to sue jointly against the defendants also jointly.  Skyrun has also not put forward any alternative claim in its own right to the exclusion of Mr Guo. 

33.I also refer to Order 15 rule 4 of the Rules of the High Court; Cap. 4A which provides:

“Where the plaintiff in any action claims any relief to which any other person is entitled jointly with him, all persons so entitled must, subject to the provisions of any written law and unless the Court gives leave to the contrary, be parties to the action and any of them who does not consent to being joined as a plaintiff must, subject to any order made by the Court on an application for leave under this paragraph, be made a defendant.”

34.Since Skyrun and Mr Guo together constitute Party A in the 1st USD Agreement and thus jointly entitled to the benefits therein,I can see no reason why Mr Guo should not be joined as a plaintiff in this action as well.

35.I also do not understand what redundancy Mr Yeung is referring to.  Furthermore, even if the trial judge should find that Skyrun alone is entitled to the payments under the 1st USD Agreement, that would simply mean that Mr Guo would not be given any judgment.  There is no question of any redundancy.

36.I also think that Mr Hui’s argument of inherent inconsistency is wrong.  Skyrun is a limited company and can only speak through a representative authorized by its board.  Though Mr Guo and Skyrun together constitute Party A to the 1st USD Agreement, it does not mean that he cannot be Skyrun’s authorized representative to give evidence for Skyrun in this case.  I cannot see any inconsistency.

37.In the premises, I am of the view that Mr Guo should be joined as the 2nd plaintiff in this action.

38.I now deal with the merits of the proposed amendments.  I do not think that the naming of the agreement dated 8 August 2011 as the 1st USD Agreement or as a Settlement Agreement would in itself create any issue in the action or produce any prejudice to the defendants.  The court is not going to decide the dispute by looking at the label or abbreviation applied to the agreement. 

39.I also do not think the re-naming of the agreement would broaden the ambit of this case.  It is not necessary to go into the history which has led to the making of the 1st USD Agreement.  Skyrun and Mr Guo say that all the previous disputes (including the dispute on size of the rubber plantation) have been resolved and settled by the 1st USD Agreement or Settlement Agreement or whatever name or label one may affix to this agreement.  There is no need to revive them for the court to consider who was right and who was wrong.  They have been laid to rest by this agreement.  This is also what is stated in the preamble of the agreement. 

40.For the defendants, the proposed amendments also would not create the need for them to go into the history or previous disputes that led to the making of this agreement.  The reason being that they have spelt out already their defence to this agreement in §§5 to 10 of their existing defence as cited above.  The grounds of the defence are that Skyrun had provided no and/or inadequate consideration to the payment pursuant to the 1st USD Agreement or Settlement Agreement (§8) and/or this agreement was subject to two conditions (§9) which did not materialize.     

41.Ms Ma has also set forth her evidence in line with the defence in §§5 to 25 of her witness statement.  The defendants have thus gone into all the evidence that they need to. 

42.In so far as the previous disputes that are relevant to the defence, they have been set forth in both the defence and in Ms Ma’s witness statement.  If the defendants should consider that they have not done enough and would like to elaborate on these matters, this need is not generated by the proposed amendments but by the defendants’ own inadequacies in the preparation of the defence and evidence in opposition. 

43.Furthermore, neither Mr Yeung in his affirmation nor Mr Hui in his written submissions has suggested that the amendments will necessitate a change of the grounds of defence.  I cannot see how the proposed amendments will necessitate the canvassing of the previous disputes between the parties beyond those that have been dealt with in the defence and Ms Ma witness statement.  

44.On the whole, I am of the view that the application for amendments and deletion of claims under other documents as a whole can make the case much less elaborate, simple, clear and straightforward.

45.Regarding Mr Hui’s ground that the investments pursuant to the Joint Acquisition Agreement were made by Skyrun and not by Mr Guo himself.  Hence, if there was any settlement, it was only between the investors; namely Skyrun and SRL.  It had nothing to do with Mr Guo who therefore had failed to provide any consideration for the agreement. 

46.This argument was only made in Mr Hui’s written submissions which were filed after all the affirmations and Mr Hon’s submissions have been filed.  Nevertheless, one cannot overlook the fact that Skyrun could have provided consideration for the agreement by agreeing to enter into the Settlement Agreement subject to including Mr Guo as a party to the agreement. Mr Guo could also have provided consideration by procuring Skyrun to enter into the agreement.

47.The defendants also say that Skyrun and Mr Guo are relying on additional documents namely the guarantee and undertaking. Hence, they have to adduce additional documents to say why they are not liable under these two documents. 

48.The guarantee pleaded in §1(j) of the proposed amendment is the same guarantee that has been pleaded already in §3 of the original SoC.  Ms Ma was required by the 1st USD Agreement to give it.  Ms Ma has set forth her defence to it in §11 of the defence.  Hence, there is nothing new in the guarantee.

49.Regarding the undertaking, the defendants were required by the 1st USD Agreement to give it.  Skyrun and Ms Ma were aware of it when they dealt with the agreement.  The undertaking required the defendants as Party B to the 1st USD Agreement to pay into Skyrun’s designated bank account the amounts due under the agreement and failing which to pay Skyrun the interest agreed in the agreement.  The undertaking, hence, only requires Skyrun and Ms Ma to do what they have agreed to in the 1st USD Agreement.  It does not add anything new to the defendants’ obligations or liability under the 1st USD Agreement.  I cannot see what new evidence the defendants have to adduce in defence of their liability pursuant to the undertaking which they have not yet adduced. 

50.Neither Mr Yeung in his affirmation nor Mr Hui in his submissions has given any clue to what new evidence or additional documents that the defendants will have to produce to say why they are not liable.  The defendants have only made a general statement without condescending on particulars of what new documents will be made relevant by the bringing in of the guarantee and/or undertaking.  Such general statement is most unhelpful at all. 

51.Mr Yeung has also said that the schedules of interests have been set forth already in Mr Guo’s witness statement and they need not be pleaded in the SoC.  However, to plead the interest in the two schedules in the SoC is to particularize the liquidated damages.  This completes the pleaded claim against the defendants.  I see no objection in that.

52.The above disposes of all the defendants’ objections to the merits of the proposed joinder and amendments.

Delay

53.The application was taken out in late August 2016.  The defendants have been served with the draft Amended SoC on 31st August 2016.  That was about 10 months before the trial.

54.Mr Hon also pointed out that the joinder of Mr Guo did not per se affect the nature of the claim.  In insofar as the determination of the issues is concerned, the added party does not strengthen the case of either party.  Mr Guo is also a witness in the action.  His joinder only gave him the additional status of being a party.

55.Mr Yeung intimated in his affirmation that to allow the application may cause an adjournment of the trial.  He accused Skyrun of attempting to move the litigation goal post at a very late stage after all evidence has surfaced.  He said that this was utterly unfair to the 1^st and 2^nd Defendants as the costs and efforts spent have been wasted and the defendants cannot envisage what kind of case that they are meeting.  However, from my discussion above on the merits of the amendments, it is clear that such complaints have no merit whatsoever. They are boastful exaggerations. 

56.Regarding the schedules of interests which have already been disclosed in Mr Guo’s witness statement exchanged on 3 May 2016, Mr Yeung alleged that the defendants have to respond to the calculations individually and it is inevitable that more evidence is adduced in support on this.  But he has not said a word on what undisclosed evidence or document will have to be produced.  Such generalized complaint is useless.  I also do not see how the checking of the schedules will take a lot of time.  If such checking is necessary, and I think it is, it should have been done soon after 3 May 2016 and would have been concluded a long time ago.  I cannot see how the trial dates may be affected by the pleading of the schedules. 

57.Mr Yeung also alleged that it was possible that interlocutory applications would be taken out by the parties.  But again this is a generalized and useless complaint.  He did not say what kind of application would be taken out by whom and for what reason. 

58.Mr Yeung also alleged that the joinder and amendments will in effect cause the entire proceedings to start afresh.  I disagree.  The application of joinder is to put matters right on the entitlement to sue.  I have also said that the amendments and deletion of claims have made the case clear, simple and straightforward. 

59.Mr Hui also said in his written submissions that there is a real risk that the trial dates will be jeopardised.  Though he said the action was commenced on 8 July 2014, he acknowledged that this application was issued on 31^st August 2016. 

60.He referred to Skyrun’s argument that the new case in the amendments is based on the same documentary evidence which has been available to the defendants all along.  He, however, argued that Skyrun is seeking to plead a fundamentally different nature for the 1^st USD Agreement and the defendants have been taken by surprise.  He also envisaged that change of Skyrun’s case (which is somewhat inconsistent with the originally pleaded case) will lead to substantial amendments on pleadings and witness statements by both parties.  But he did not say what kind of amendment to pleadings or evidence will be introduced by the parties.  I say again that such generalized and boastful complaints are useless.  There must be particulars and concrete particulars to make the complaints meaningful.  Furthermore, in the light of my discussion on the merits of the amendments and in particular §§5 to 11 of the defence, this argument has no merit.

61.In the premises, I allowed the application.  I also order costs of the application and of and occasioned by the amendments be paid by Skyrun to the defendants.  But I ordered the defendants to pay the costs of the argument on the application to Skyrun as the defendants have lost their opposition.

Mr Kevin Hon, instructed by Christine M Koo & Ip, Solicitors & Notaries LLP, for the plaintiffs

Mr John Hui and Ms Wallis Chung, instructed by Michael Li & Co, for the 1st to 4th defendants