Sit Sau Ming v. Leung May Chun, Alison Aliance Formerly Known As Sham May Chung

DCCJ 4453/2008

[2019] HKDC 435

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4453 OF 2008

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REASONS FOR DECISION

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1.By way of background, this case was tried in the District Court and culminated in the judgment dated 12 December 2017. By an order dated 6 December 2018, the Court of Appeal allowed the appeal of the defendant, set aside the judgment and remitted the case to the District Court for a speedy retrial before another judge.

2.On 9 January 2019, the Registrar set down this case for a 4-day trial to commence on 26 August 2019.  The Registrar further directed that all further interlocutory application be listed for disposal by the trial judge.

3.By the summons dated 18 March 2019, the defendant applied for:-

(1)   leave to re-amend her Amended Defence (“AD”);

(2)   leave to file and serve her supplemental witness statement; and

(3)   an order that the plaintiff do answer her request for further and better particulars of the Amended Statement of Claim (“ASOC”) as stated in the letter dated 18 March 2019.

4.The plaintiff initially questioned why the application was only issued some 2.5 months after the fixing of the trial.  By the affirmation filed on 22 March 2019, the defendant’s present solicitors deposed to the circumstances of the application and maintained that the trial would not be derailed.  Nothing further turned on the lateness of the application.

5.At the hearing, Mr Chain for the plaintiff said that his primary concern was that the outcome of the summons should not affect the trial. 

6.He initially took 4 objections to the proposed amendments, viz paras 9(a) to 9(d) of his synopsis.  Upon reflection, he withdrew his objection under para 9(c).

7.As to the objection under para 9(a) based on inconsistent pleas, Mr Hung for the defendant counter-proposed to withdraw the amendment in para 11(b) and delete para 8(c) of the AD to avoid any inconsistency with the new plea under para 5(e) (subject to the typo pointed out at the hearing).  That was accepted by the plaintiff.

8.As to the objection under para 9(d), Mr Hung elected to withdraw the amendments in para 12B and prayer 2, and the amendments in para 21 and prayers 4, 5 and 6 after considering Mr Chain’s submissions.  By a post-hearing note dated 27 March 2019 (upon my request for clarification), Mr Chain clarified that he has no real/continued objection for prayer 1 of the defendant’s proposed counterclaim. 

9.What fell for determination was the objection taken in para 9(b) of Mr Chain’s synopsis.  The defendant proposed to add a new para 12A in these terms:-

“Further or alternatively, if which is denied and contrary to the contention of the Defendant, by reason of the Car Parking Space discrepancies and/or name discrepancy the Defendant was unable to give good title to the Plaintiff, the Defendant says that the Plaintiff had failed to complete the sale by reason of the negligence on the part of the Firm, in that,

(a) the Firm despite their knowledge regarding the Car Parking Space discrepancies and/or name discrepancy had failed to case acting for the Plaintiff and the Defendant so that the Plaintiff and the Defendant may through their new legal representatives liaise and resolve the title problems before 2 January 2008;

(b) further by continuing representing the Plaintiff and the Defendant, the Firm had put themselves in a position not being able to give proper advice to the Plaintiff and/or raising requisition to the Defendant in accordance with the terms of the S&P;

(c) alternatively, the Firm had failed to advise the Plaintiff reasonably before 2 January 2008 of the fact that the Defendant was not in a position to give good title of the Property; the Firm ought to have upon informing the Plaintiff of that, proceed to advise (as they subsequently did) the Plaintiff whilst the Firm considered there were title defects of the Property the Plaintiff should nonetheless accept title (as the Plaintiff subsequently purportedly did) and proceed to completion.”[1]

10.According to Mr Chain, the plaintiff’s case is that:-

(a)   The sale and purchase agreement provided for completion on or before 2 January 2008 (para 5(a) of the ASOC).

(b)   The Firm acted for both the plaintiff (as purchaser) and the defendant (as vendor) in the transaction (para 7 of the ASOC).

(c)   “… It was the bona fide opinion of [the Firm] that Defendant was unable to complete the sale and purchase in terms of the sale and purchase agreement on or before 2.1.08 by conveying a good title to the said car parking spaces to the Plaintiff.” and “On 2.1.08 at the suggestion of [the Firm], the Plaintiff and the Defendant agreed to postpone the contractual completion date of the sale and purchase from 2.1.08 to 9.1.08 so as would enable [the Firm] and the Defendant to take steps to rectify all defects in her title.” (paras 10 & 11 of the ASOC)

(d)   Despite the steps taken to resolve the title defects (as pleaded in paras 12, 13 & 14 of the ASOC), the defendant has failed or refused to complete the sale and purchase. (para 17 of the ASOC)

11.According to Mr Chain, the agreement is still subsisting and hence the claim for specific performance.  It was never the plaintiff’s contention that the defendant “was unable to give good title to the Plaintiff”.  In the event that the court finds against the plaintiff on the alleged agreement to postpone the completion (see para 12(a) of the AD), he said that the plaintiff would be in breach for failing to complete on 2 January 2008 and it did not matter if the plaintiff’s breach was “by reason of the negligence on the part of the Firm” or not.

12.On the basis of Mr Chain’s submissions, I disallowed the amendment.

13.On the application to file a supplemental witness statement, the defendant was directed to provide a draft before her application would be considered further.

14.As to the request for further and better particulars, Mr Chain objected on the ground of necessity (O 18, r 12(3B)).  He submitted that adequate particulars can be discerned from the evidence of the plaintiff and her witness (Gordon Tsang) at the first trial and it was not necessary to provide the particulars requested either for disposing fairly of the cause or matter or for saving costs.  To make good his submission, he agreed to identify the relevant evidence from the transcripts for the defendant’s reference.  Mr Hung agreed that the defendant might not need to proceed with the application if sufficient particulars can be gleaned from the transcripts.

15.I therefore directed that:-

(1)   The defendant do file and serve a Re-Amended Defence and Counterclaim (as per the draft annexed to the summons but subject to the concessions made and my above ruling) on or before 1 April 2019.[2]

(2)   The plaintiff be at liberty to file and serve an Amended Reply and Defence to Counterclaim (if so advised) on or before 10 April 2019.

(3)   On the defendant’s application to file a supplemental witness statement:

(a)   The defendant do lodge and serve the supplemental witness statement in draft for consideration on or before 29 April 2019;

(b)   The plaintiff do lodge and serve her submissions thereon on or before 6 May 2019;

(c)   The application would be dealt with on paper unless otherwise directed.

(4)   On the application for further and better particulars:

(a)   The plaintiff do lodge and serve her argument on necessity with reference to the transcript of the first trial on or before 29 April 2019;

(b)   The defendant do lodge and serve her reply on or before 6 May 2019.

(5)   The question of costs of the summons will be decided on paper after the disposal of (3) and (4) above.  The parties are directed to lodge and serve written submissions on or before 20 May 2019.

Mr Benjamin Chain, instructed by Pansy Leung Tang & Chua, for the plaintiff

Mr Andy Hung, instructed by Chong & Yen, for the defendant