Chan San v. Hans Li, The Person Appointed To Represent the Estate of Kam Shui Man, The Deceased and Others

HCA 840/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 840 OF 2012

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BETWEEN

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D E C I S I O N

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The Application

1.This is the application of the plaintiff (“P”) to amend the Re‑re‑Amended Statement of Claim by summons dated 28 December 2016.  This application is opposed by the 1^st defendant (“D1”).

2.P’s conduct of the proceedings is extraordinary and has caused embarrassment to D1 and this Court.  This is because three days before the hearing when P should submit the written submissions to the Court and the other side, P’s solicitors wrote to the Court saying that their client was unwilling to pay counsel’s fee and their fee.  They have taken out an application to withdraw from acting for him.  The application will be heard sometime next week.  They asked for an adjournment of this hearing today.

3.D1’s solicitors contested and submitted that were ready to proceed.

4.In view of D1’s objection, this Court told P that the hearing should proceed and the application for adjournment had to be dealt with at the hearing.

5.D1’s written submissions were submitted to the Court for today’s hearing.

6.At the hearing this morning, P’s solicitors informed this Court that if the Court refused the application for adjournment, he would proceed with the application himself and that he had prepared the brief written submissions, which he produced to the Court and D1.

P’s grounds

7.P’s brief written submissions highlight the fact that because of the recent conference with counsel, P had changed his previous instructions of the facts of the case.  He had already given his witness statement with the changed facts, which he had exchanged with D1 in November 2016.  Now, he wants to amend the pleadings in order to be consistent with his witness statement.

8.P says that those are the factual amendments.  As things happened more than twelve years ago, and subsequently, P had obtained aerial photographs, which shows that the facts pleaded were incorrect, P has to make the present application.

D’s grounds of opposition

9.D1 opposes the proposed amendments on the following reasons:

a.  P has pleaded his case by way of statement of truth.  His solicitor had seen the pleadings.  The application should take this factor into consideration when there is an application for amendment.

b.  The proposed amendment to paragraph 1 of the Re-re-Amended Statement of Claim will render the parameter unclear, though there is a map showing the land.

c.  The facts proposed to be amended are diametrically different from the facts pleaded, which will turn the matter into a different case.  P originally pleaded that he came to Hong Kong in 1960s whereupon he built seven houses.  He was born in 1959.  On the face of it, this is not possible.  Now, he wants to change the fact into that the land was first occupied by his father and grand uncle.  He came to Hong Kong in 1976.

d.  D1 relies upon the authority of Tildesley v Harper [1878] CA Chancery Division 303, which held that as a general rule leave to amend ought not be refused unless the Court is satisfied that the party applying is acting mala fide, or that his blunder had done some injury to the other side which cannot be compensated by payment of costs or otherwise.

e.  D1 also relies upon Li Fat Mui v Able Engineering Co Ltd & Ors [1998] 1 HKC 469, which is a case where the court was dealing with the defendant applying for leave to withdraw the previous admission in the Defence.  Mr. Wong agrees that this application is different as P is resiling from the facts he had previously pleaded, there being no withdrawal of admission.

f.   D1’s counsel further submits that the proposed application is not made bona fide.  He refers to Kings Quality Homes Ltd v AJ Paints Ltd CA [1997] 3 All ER 267 in which the court ruled that the court was entitled to consider the merit of the case readily apparent to it.

g.  In P’s Listing Questionnaire, P told the Court that he would be ready for trial in August 2017.

h.  D1 agrees that P’s witness statement was exchanged in November 2016.  D1 was aware of the discrepancies between P’s pleaded case and his witness statement.

10.P argues that the proposed amendments will not make the case a different case because the land being claimed, P and the reasons are the same.  It is only the facts in support, that is to say, who first occupied the land and instead of P, it was P’s father and grand uncle.  It was not P who had built the fences but he assisted in repairing them.  The expert evidence will be exchanged.

11.As to the parameter of the land, P says that by reference to paragraphs 1 and 3 and the index plan of the Statement of Claim, the land should be well‑defined.

Discussion

12.The legal principles on amendment are trite.  I shall not endeavor to set them out here.  The case relied upon by D1 and P was an old case, with similar legal principles to be considered in light of the CJR, which may modify the decisions.

13.It is clear that the Court will give prominence to the underlying objective that the Court should determine on the merits of the case.  On this basis, amendments to the facts of the case should be allowed unless factors like mala fide, undue delay causing prejudice that cannot be compensated by costs appear.  But those factors are not proved in this application.

14.Having taken into consideration of the facts and factors above, it is apparent that the amendments are on the facts of the case.  As such, they should be allowed as the case has not been sent down for trial.  This may cause costs to D1 to make the responses to the amendments.  But this can be compensated by costs.

15.I therefore allow the application.

Order and costs

16.As to the costs of this application, the costs of and occasioned by the application should be to D1, to be assessed if not agreed in any event.

17.As to the costs of this hearing and the costs reserved, P is obviously in breach of Practice Directions 5.4.  As such, I decide that there shall be no order as to costs for today’s hearing.

18.This Court shall now make an order in terms as follows:

a.  The application is allowed, service of the amended pleadings be dispensed with;

b.  D1 is at liberty to file and serve the amended pleadings consequential upon P’s amendments herein within 28 days from the date hereof; and

c.  The costs shall be as per paragraphs 16 and 17.

Mr. Ho Wing Hang Howard, of Ellen Au & Co., for the Plaintiff

Mr. Samuel Wong, instructed by Sit Fung Kwong & Shum, for the 1^st Defendant