Success Lane Development Ltd v. Fergurson Hong Kong Ltd t/a New World Millennium Hong Kong Hotel
Read the full judgment text of DCCJ 2191/2023 on BabelCite. This District Court judgment was delivered on 27 March 2024.
2. I shall not repeat the background and the parties’ respective cases already detailed by Deputy District Judge M Lam in §§2-28 of her Decision handed down on 25 September 2023 ( [2023] HKDC 1325 ) for discharging the ex parte injunction order (the “Ex Parte Order”) obtained by the plaintiff upon its second ex parte application made on 12 July 2023 (the “2 nd Ex Parte Application”). I do, however, think it necessary to set out certain procedural steps taken by the parties here insofar as they a
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DCCJ 2191/2023 [2024] HKDC 509 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 2191 OF 2023 ________________ BETWEEN
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___________________ DECISION ___________________ INTRODUCTION 1.Before me are:-
BACKGROUND 2.I shall not repeat the background and the parties’ respective cases already detailed by Deputy District Judge M Lam in §§2-28 of her Decision handed down on 25 September 2023 ([2023] HKDC 1325) for discharging the ex parte injunction order (the “Ex Parte Order”) obtained by the plaintiff upon its second ex parte application made on 12 July 2023 (the “2nd Ex Parte Application”). I do, however, think it necessary to set out certain procedural steps taken by the parties here insofar as they are relevant to determination of the Summonses. 3.The Ex Parte Order was not a mere injunction order. It consisted of, among others, an order that the defendant be compelled to allow the plaintiff and its loss adjuster access to the Room for inspection and assessing damage of the Belongings for a period of 7 days, within 7 days from the issuance of the order: see §30(5) of the said Decision. Deputy District Judge M Lam discharged the whole Ex Parte Order “on the mere ground of there being material non-disclosure on the part of P”: see §33 of the said Decision, namely, the plaintiff failed to disclose in the 2nd Ex Parte Application that on 2 June 2023, the plaintiff had made a first ex parte application to obtain essentially an identical injunction order but failed: see §36 of the said Decision. The learned judge, for the sake of completeness, also examined other grounds for discharging the Ex Parte Order. The plaintiff’s application for leave to appeal against her Decision was refused by the learned judge on 1 March 2024, and I am given to understand that on 15 March 2024, the plaintiff lodged with the Court of Appeal an application for leave to appeal. 4.Then, on 22 September 2023, the plaintiff made the third ex parte application for, again, essentially an identical injunction order. The application was adjourned for an inter partes hearing on 29 September 2023 before His Honour Judge Harold Leong, who dismissed the application on the same date, on the ground that there was no urgency and in any event, the application itself was unmeritorious. In his Chinese Reasons for Decision handed down on 9 January 2024, he recounted certain facts which are relevant to my task of determining D’s Discovery and Expert Summons below:-
5.The plaintiff’s application for leave to appeal against his Decision was refused by His Honour Judge on 5 March 2024, and I am given to understand that on 19 March 2024, the plaintiff lodged with the Court of Appeal an application for leave to appeal. 6.Besides relevance to the determination of D’s Discovery and Expert Summons below, in the plaintiff’s various failed applications for injunction order, the parties filed substantial evidence in relation to the dispute between them. Thus, while, though the pleadings having been closed, no automatic discovery has been carried out and no case-management summons has been taken out, the parties’ evidence filed so far has been rather comprehensive and the parties should be able by now to know what the essential disputes between them are. It is not like a usual case where the parties have yet to know the other parties’ essential documentary evidence and essential witnesses’ evidence, upon which it is not unusual for parties to amend the pleadings. P’S AMENDMENT SUMMONS 7.In respect of P’s Amendment Summons, the defendant sensibly does not object to certain parts of the proposed amendments to the amended statement of claim, namely, §§14d, 24-26, 28-37 and 68-71 of the draft re-amended statement of claim. Those parts are related to the substantive dispute between the parties. In my view, the plaintiff is entitled to make those amendments. 8.The defendant opposes the rest of the proposed amendments, namely, §§19-23, 27 and 38-67 of the draft re-amended statement of claim. Those proposed amendments are all averments about the history of and submissions made in plaintiff’s previous applications for injunctions and the related costs orders as well as plaintiff’s some attempted communications with one of the judges seized of the matter. The representative of the plaintiff, Ms Yung Mei Chun Jessie, submits that these averments provide the background. In my view, background they may be, they are not relevant to the substantive disputes between the parties. They should be disallowed. 9.In the circumstances, I grant leave for the plaintiff to re-amend the amended statement of claim per §§14d, 24-26, 28-37 and 68-71 of the draft re-amended statement of claim, and dismissed the plaintiff’s application for the rest of the proposed amendments. 10.Lastly, I note that the statement of claim and the amended statement of claim were not properly verified by a statement of truth. By virtue of Order 41A rule 3(2) of the Rules of the District Court (Cap 336H), the statement of truth of the plaintiff shall be signed by a person holding a senior position in the plaintiff. However, the statements of truth were both signed by an unknown person on a company chop of the plaintiff, and I note that the signature there was not the same as the signature on the Affirmation of Yung Mei Chun Jessie, who has prepared various affirmations in relation to the applications now before me. I take this opportunity to remind the plaintiff that in the coming re-amended statement of claim, the statement of truth must be properly signed by an identified person holding a senior position in the plaintiff. PLEADINGS RELEVANT TO D’S DISCOVERY AND EXPERT SUMMONS 11.For the present purposes of determining D’s Discovery and Expert Summons, I shall set out the following parts of the parties’ pleadings. As I have granted leave for the plaintiff to re-amend its amended statement of claim, I shall refer to the re-amended statement of claim here. 12.The re-amended statement of claim contains the followings:-
13.The amended defence and counterclaim contains the following:-
14.The plaintiff has not filed any reply and defence to counterclaim. 15.It is clear from the above that:-
16.The issues as crystalised by the pleadings set out above are, broadly:-
PLAINTIFF’S 18 MAY 2023 EMAIL 17.In the Ex Parte Application, the plaintiff, in its supporting affirmation, exhibited a bundle of correspondence between the parties, among which was the Plaintiff’s 18 May 2023 Email. I set out the relevant paragraph of that email below:-
APPLICATION FOR DISCOVERY IN D’S DISCOVERY AND EXPERT SUMMONS 18.The document sought by the defendant against the plaintiff in D’s Discovery and Expert Summons is this very document mentioned in Plaintiff’s 18 May 2023 Email, described in the said summons as “[t]he detailed inventory, complete with photos and videos, of the items in the hotel guest room 442 (“Room”) and their respective values, as compiled by the Plaintiff and referred to by the Plaintiff in its email to [the Defendant] dated 18 May 2023”. Thus, there is prima facie evidence of the existence of this document. At the hearing, without evidence, Ms Yung said that the Plaintiff’s 18 May 2023 Email was written by her husband, Cheung Moon Hoi Jeff, the other director of the plaintiff and her husband told her that he had many inventory lists at the time of writing that email and he had no idea which inventory lists the defendant is seeking discovery of. What Ms Yung said is not in evidence, not even hearsay evidence in Ms Yung’s affirmation filed in opposition. Further, her husband did not make any affirmation and Ms Yung told me that she does not see any reason why her husband had to. In any event, Ms Yung’s such saying from the bar table would only point to the existence of the inventory; it is just that there are more than one inventory list as at the date of 18 May 2023 when that email was issued. If that is the case, then all the lists exist, and apparently, the reference to the “inventory” in the Plaintiff’s 18 May 2023 Email is a reference to all the lists. I disagree with Ms Yung that such discovery of the lists would be fishing – the lists would tell what the Belongings were, and if, as Ms Yung seemed to suggest, the lists are incomprehensive and/or inaccurate, the plaintiff may adduce evidence in support of her such suggestion, the credibility of which would be a matter for trial. 19.As regards relevance, the inventory is centrally relevant to the subject dispute, and the plaintiff’s opposition raised in its affirmation that the discovery would infringe upon the plaintiff’s and its directors’ privacy is stated to be rejected – the relevance clearly outweighs any alleged privacy here: see Chan Yim Wah Wallace v New World First Ferry Services Ltd [2015] 3 HKC 382 at §§44-47 per Bharwaney J. If in due course, the plaintiff thought it not worth claiming for damages in relation to certain items that are very private to the plaintiff or its directors, the plaintiff would be at liberty to waive claim in relation to those. Further and in any event, the defendant has an implied undertaking not to use any documents disclosed in these proceedings for ulterior purposes: see Order 24 rule 14A, and in response to the plaintiff’s such privacy concern, the defendant expressed this undertaking to the Court at the hearing as well. 20.As regards possession, custody and/or power, this inventory obviously is or has been in the plaintiff’s possession, custody and/or power because the plaintiff itself wrote in the email that “we have [the] detailed inventory…”, and the plaintiff does not say anything to contradict what it wrote in the email. At one point, Ms Yung seemed to suggest that the inventory lists are no longer with the plaintiff. But even documents that have been in possession, custody and/or power should still be disclosed in the list of documents, and if the documents are no longer with the plaintiff such that the plaintiff cannot provide the same for inspection, the plaintiff would say so properly. 21.The plaintiff also submits that the application for the discovery is oppressive because it would be unable for the plaintiff to compile the inventory lists to the satisfaction of the defendant. Such submissions are unmeritorious at all because what the defendant is seeking is the inventory lists referred to in the Plaintiff’s 18 May 2023 Email. The plaintiff would not be asked to compile some new lists now. 22.Another ground of opposition is that the discovery is not necessary for the fair disposal of the matter and/or saving costs at this stage. In this regard, the Court has a wide discretion when to order discovery in the interest of justice, although in general, discovery is refused before the close of pleadings because issues would usually not have been defined: see Hong Kong Civil Procedure 2024 Vol 1, §24/3/5. 23.In my view, in response to such lack of particulars of the Belongings provided by the plaintiff, the defendant may choose to apply for further and better particulars first rather than specific discovery at this early stage. Nevertheless, given (1) the procedural history where the plaintiff referred to the Plaintiff’s 18 May 2023 Email itself in its own affirmation; (2) the inventory itself would provide the particulars; and (3) the likelihood that upon provision of the further and better particulars (if so applied), the defendant would then seek specific discovery of the documents in support of the particulars in the light of the Plaintiff’s 18 May 2023 Email, I am satisfied that the discovery is in the interest of justice and necessary for the fair disposal of the matter and also for saving costs even at this stage. Thus, I shall make an order of discovery of the inventory. 24.Another discovery being sought under D’s Discovery and Expert Summons is, rather unusual, a discovery against itself, for “the list of items moved out of the Room on 18 May 2023 as recorded and prepared by the Defendant”. This is obviously relevant. The defendant’s unusual application for a discovery order against itself is because of its concern about the timing of the discovery – it seeks a mutual exchange of the plaintiff’s inventory and its own list. I can see the reason for a mutual exchange – this is to be fair to both parties by avoiding any unnecessary argument that the document discovered later by one party is somehow doctored based on the document discovered earlier by the other party. Given the prime relevance and importance of the inventory and the list to the dispute between the parties, I am satisfied that in exercising my discretion to order the discovery, for a fair disposal of the matter, it should be done by way of mutual exchange. The inventory and the defendant’s list are ready. The exchange shall take place within 28 days as proposed by the defendant. 25.For convenience, I shall refer to this discovery order as the “Discovery Order”. APPLICATION FOR EXPERT DIRECTIONS IN D’S DISCOVERY AND EXPERT SUMMONS 26.In respect of the defendant’s application for expert directions, I note that the margin of D’s Discovery and Expert Summons states “O. 40”, which is a provision for court expert. At the hearing, the defendant clarified that it intended to make the application under Order 38 rule 36. It must be, because in the proposed order in the said summons, each party would be able to engage its own expert. 27.The expert directions being sought are:-
28.There is no dispute, and I agree, that the expertise required is that of a loss adjuster. 29.Issues (a) and (b) are clearly relevant. By compiling and comparing the lists, the parties would then be able to know the particulars of the items and identify the items and any lost items. 30.Issue (c) is clearly relevant, as one of the disputes between the parties is whether certain items have been lost and if so, their values. 31.Issue (d) is clearly relevant, as one of the disputes between the parties is whether any items have been damaged, and if so, whether the defendant caused the damage, and if so, how much. 32.The plaintiff opposes the application for expert directions. One of the grounds of opposition is set out in §17 of the Affirmation of Yung Mei Chun Jessie filed for the plaintiff on 24 January 2024, namely, “[t]hroughout the period from July to December 2023, the Defendant has vigorously defended against and opposed all the Plaintiff’s applications for inspection of loss assessments in all the hearings, their affirmations and submissions…” 33.The plaintiff’s such opposition is, if not misleading, based on misapprehension of the facts, and thus I reject the same, for the following reasons.
34.Another ground of opposition raised by the plaintiff is that it is premature to have evidence of quantum of loss and damage, and that liability should be established first before any order for evidence in relation to quantum is made. I am surprised by such ground of opposition, because usually, it is the plaintiff who would like to have both liability and quantum tried together to shorten the time before it would be able to obtain damages. In any event, the general rule is that all the issues in a case are to be tried at the same time, and a split trial is ordered only if it is just and convenient to do so: see Hong Kong Civil Procedure 2024 Vol 1 §33/4/9. In the present case, there is no order for a split trial. No application is made for a split trial. Nor can I see from the materials before me why it is just and convenient to order a split trial. Ms Yung also submits that the expert directions are premature also because there may be further damage to the items prior to the trial. In my view, an update (if necessary) to the expert reports would be made easier with the ground work already carried out pursuant to the expert directions being sought by the defendant. 35.Lastly, Ms Yung submits at the hearing that the lists disclosed would not be sufficiently detailed for carrying the expert directions being sought by the defendant. However, from the description of the inventory in the Plaintiff’s 18 May 2023 Email being “a detailed inventory, completed with photos and videos, of the items… and their respective values” (my emphasis), the plaintiff’s inventory would be sufficiently detailed enough for that purpose. As regards the defendant’s lists, it seems from the defendant’s solicitors’ submissions that the list would not be sufficiently “detailed”, but with the plaintiff’s inventory lists alone, it seems to me that the experts would still be able to carry out the proposed expert directions. In any event, in order to cater for any possibility unforeseeable from the evidence before me, I would make it clear that there shall be liberty to apply in respect of the expert directions. 36.I have not overlooked the usual practice that expert directions are only given at the case-management stage, where discovery would usually have been completed and witness statements have been ordered. However, as the procedural history I set out above shows, the parties have effectively produced substantial evidence in the present action. Although I have just granted leave for the plaintiff to re-amend its amended statement of claim, the re-amendments do not affect the pleadings relevant to the determination of the expert directions. In the circumstances, I think I should grant the expert directions being sought by the defendant, subject to tying two loose ends as explained below. 37.First, I do not think that the loss adjusters should, as proposed in paragraph 4 of D’s Discovery and Expert Summons, compile a joint report before they have their own respective, separate reports. In my view, it is more effective to have their own reports exchanged first, then followed by without-prejudice meetings for the purpose of preparing a joint expert report setting out agreements and disagreements. The reason is that given the potentially large amounts of items, it should be more effective and fairer for the parties and their legal teams to have a chance to consider the other side’s report first, rather than having the experts discuss the agreements and disagreements among themselves to prepare the single report in one go. 38.Second, I do not accede to paragraph 4(e) of D’s Discovery and Expert Summons, which is effectively a carte blanche and would provide an unnecessary door for the experts to ramble on issues which the other side might not expect. If any of the experts would take the view that the issues defined in paragraph 4(a) – (d) are insufficient, he would inform the party accordingly and the party would make any necessary application to the Court. PLAINTIFF’S OTHER APPLICATIONS IN CONTEMPLATION 39.For the sake of the completeness, towards the end of the hearing, Ms Yung submits that the plaintiff would like to make applications to strike out certain parts of the defendant’s amended defence and counterclaim, and for determination of issues under Order 24 rule 4 in relation to the lien counterclaimed by the defendant. She submits that these applications would have significant or even conclusive impact on the outcomes of the summonses before me. I do not have these applications before me; nor do I understand the grounds for such applications in the plaintiff’s contemplation at this stage. Therefore, I do not pay any regard to the plaintiff’s such contemplations at all in determining the Summonses before me. CONCLUSION 40.In the premises, I make the following order. 41.In respect of P’s Amendment Summons:-
42.In respect of D’s Discovery and Expert Summons:-
Ms Yung Mei Chun Jessie, Director, represents the Plaintiff, acting in person Mr H Y Leung of Messrs Y T Chan & Co, for the Defendant |
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