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DCCJ 3404/2021
[2025] HKDC 154
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 3404 OF 2021
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BETWEEN
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SINO DATABASE LIMITED |
1st Plaintiff |
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CHAN TIN CHI |
2nd Plaintiff |
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and |
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ABERDEEN BOAT CLUB LIMITED |
Defendant |
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| Before: |
His Honour Judge Alan Kwong in Chambers (Open to the Public) |
| Date of Hearing: |
21 January 2025 |
| Date of Decision: |
21 January 2025 |
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DECISION
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Introduction
1.The trial of the present action will commence on 17 February 2025 (with 5 days reserved).
2.After the pre-trial review on 12 December 2024, the 2nd Plaintiff belatedly took out 3 summonses on 2 January 2025, 6 January 2025 and 17 January 2025.
3.In short, the 2nd Plaintiff seeks:-
(1) to amend the writ of summons and statement of claim;
(2) to adduce his supplemental witness statement;
(3) to adduce a purported expert report dated 18 April 2024 made by Lee Siu Leung;
(4) specific discovery against the Defendant in respect of (i) its directors’ resolution and directors’ voting records from 2021 to 2024 as well as the authorization letters in these years; (ii) its agreement(s) with Government from 2015 to 2018 that was or were related to the mooring arrangement between parties; and (iii) its internal documents and guidelines regarding safety inspection.
4.The 2nd Plaintiff also asks that the trial dates from 17 to 21 February 2025 be vacated.
Background
5.The Defendant is a well-known boating and sailing club in Hong Kong.
6.The 1st Plaintiff is the owner of a yacht named “Christine Lorraine” (the “Yacht”), and the 2nd Plaintiff is a member of the Defendant.
7.Pursuant to an agreement dated 16 March 2015 (the “Agreement”), the Defendant allocated a mooring space to the 2nd Plaintiff for the mooring of the Yacht.
8.When Typhoon Hato hit Hong Kong on 23 August 2017, the Yacht was blown off and grounded ashore. It was beyond repair.
9.It is the Plaintiffs’ case that the Defendant was in breach of contract and/or negligent, and they sue the Defendant for damages in the amount of HK$1.7 million.
10.It is the Defendant’s case that despite repeated requests, the 2nd Plaintiff did not renew the Agreement, and as such there was no contractual relationship between the parties as of 23 August 2017. Further, the Defendant contends that there was no negligence on its part.
11.For present purposes, it is unnecessary to set out the procedural history of the present proceedings in its entirety. It suffices to mention the following matters:-
(1) Pursuant to paragraph 6 of the order made by Master Soong (as Registrar Soong then was) on 7 September 2022, in the event that the parties failed to agree the directions for appointing a single joint expert, the Plaintiffs should within 42 days take out a summons seeking expert directions. Unless the Plaintiffs took out a summons seeking expert directions on or before 19 October 2022, they would be deemed as having no intention to take out such application. It is not in dispute that the parties have never reached any consensus regarding expert directions. For reasons best known to the Plaintiffs, they did not take out an application seeking expert directions before 19 October 2022.
(2) Pursuant to the orders made by Master Michael Lok on 1 March 2024, the 2nd Plaintiff’s claims in this action were provisionally struck out, and the case was set down for trial[1]. On 8 October 2024, the 2nd Plaintiff took out a summons seeking to reinstate his claims in the present action. Since the Defendant did not oppose such application, on 31 October 2024 I ordered that the 2nd Plaintiff’s claims against the Defendant in this action and its status as a party to these proceedings be reinstated[2].
(3) By a summons dated 25 October 2024, the 1st Plaintiff sought discovery in respect of the documents showing that Messrs Fairbairn Catley Low & Kong (“FCLK”) were duly authorized to act for the Defendant in these proceedings. Although the Defendant’s stance was that such application was groundless, by a letter dated 26 November 2024, a certified true copy of the resolution dated 19 November 2024 passed by the Defendant’s general committee was provided to the Plaintiffs. It can be seen that that FCLK has been authorized to represent the Defendant since November 2017. In the circumstances, on 29 November 2024 I granted leave to the 1st Plaintiff to withdraw the said summons dated 25 October 2025[3].
(4) However, on 10 December 2024, the 1st Plaintiff took out another summons seeking the resolutions and/or documents in respect of the Defendant’s directors’ meeting showing that FCLK was duly authorized to represent the Defendant in this action. At the pre-trial review on 12 December 2024, I dismissed the said summons with costs.
Deliberation
The Interlocutory Applications for adducing Expert Evidence, adducing Supplemental Witness Statement and Specific Discovery
12.Mr Simon Westbrook SC (for the Defendant) indicates that with a view to saving time and costs and avoiding surprise at trial, the Defendant does not oppose the 2nd Plaintiff’s applications (i) to amend the statement of claim (as the proposed amendment only concerns a minor clarification); and (ii) to adduce his supplemental witness statement, though the relevance thereof is not admitted and will be addressed at trial[4].
13.Save as aforesaid, the Defendant objects the applications pursued by the 2nd Plaintiff.
14.The courts have repeatedly stressed that whilst the court’s exercise of powers is to ensure just resolution of disputes in accordance with the parties’ substantive rights, if trial is imminent, the party seeking to pursue a late interlocutory application has a high threshold to meet, and he should justify the delay and show good reasons for leave to be granted.
15.In Giant Harvest Ltd v Ng Hai Corporation Ltd & Ors [2025] HKCFI 312 at paras 15 to 18, Peter Ng J stated:-
“15. In Chan Wing Cheung Allan v Ho Shu Yee Susana unrep, CACV 393 of 2004, 10 January 2005 at [9], Ma CJHC (as he then was) made the following points which are highly pertinent to the present discussion and will answer some of the submissions of Mr Leong SC.
“9. In my view, the Judge was correct in his attempt to case manage the trial of this action as best he could in the circumstances. Certainly, in my view, the exercise of his discretion here cannot be faulted. The following points are of note: ‑
While it can be accepted that the Defendant will inevitably be prejudiced by not having witness statements admitted into evidence, the Judge had to balance this prejudice against the prejudice caused to the Plaintiff in allowing them in at this very late stage. The Plaintiff would be prejudiced by having to face an inevitable adjournment of a trial that had been fixed for hearing a very long time ago. This was recognized by the Judge, rightly in my view, as being sufficient to constitute serious prejudice.
The predicament that the Defendant finds herself in is entirely of her own making. …
It is a theme running through Mr Lam’s submissions that the only real prejudice suffered by the Plaintiff was one that could be compensated for in costs. I have real doubts about this submission. Quite apart from the fact that the Defendant is legally aided (so that the benefit of any costs order may be limited), the Defendant suffers the prejudice of not having the trial take place at the scheduled time. This is often overlooked when matters are adjourned.
In any event, where an indulgence is sought from the Court, it would be a rare case indeed that this would be given, even on terms as to costs, without a satisfactory explanation being given to justify the grant of the indulgence…” (emphasis added)
16. In Converge Design and Construction Co Ltd v Mount Kelly International Ltd [2020] HKCFI 2433 at [2], Mimmie Chan J reiterated several well-known observations as to the court’s case management role after the CJR which this court entirely agrees:
“The courts have emphasized on repeated occasions that CJR is about early preparation for trial, in order to achieve the objectives of the Rules. It needs no further reminder that delay itself is a ground to refuse a late application, either for discovery or for the introduction of new pleadings and evidence, when trial is imminent. The onus is on the applicant to justify its delay and to show good reason for leave to be granted. Whilst delay is to be weighed against the probative value and relevance of the pleadings and the evidence sought to be introduced, it need not be emphasized further that the primary aim in the Court’s exercise of its powers is to secure the just resolution of disputes in accordance with the substantive rights of the parties. Such just resolution of disputes requires due consideration of the time occasioned by last minute applications to introduce amendments to the pleadings and/or evidence on the eve of trial. Prejudice is inevitably caused, in the disruptions in the preparation for trial, the need to consider the new evidence and the need to respond thereto, coupled with the need to locate witnesses at the last minute to consider and if necessary to respond to the new evidence, and the last minute distraction from the proper focus and priority of the due preparation for trial. This is actual prejudice.” (emphasis added)
17. Lastly, in Chu Hsiao Chiu v Ma Jinrui and anor [2020] HKCFI 942 at [18]–[20], Coleman J emphasized three points which are also germane here.
a. In the ‘post-CJR era’ that the underlying objectives emphasise not only substantive but also procedural fairness. Therefore, late or last-minute applications trigger the Court’s expectation that the applicant will provide a full account of the lateness of the application, and full justification as to why the application should be entertained at all at such a late stage.
b. There is no longer room for the notion that delay, even though inordinate and unexplained, will be forgiven as long as there is no prejudice and costs are paid. Courts should take into account that there may be an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Further, the vacation or adjournment of the hearing occasioned by last-minute applications may mean the loss of the hearing day which could have benefited other litigants, and inefficiencies in the use of Court time, which is a public resource. Hence, late applications can be dismissed on the basis of lateness alone.
c. Whilst the ultimate concern of the court is to achieve a just resolution of the case, it does not mean that a party should be permitted to raise any arguable case at any point in the proceedings, simply on payment of costs. If a party has been afforded a reasonable opportunity to advance its case, the just resolution of the case does not require that he should be allowed a further opportunity in spite of his own inordinate and inexcusable delay. An applicant making a late application is extremely unlikely to be able to rely upon self-induced prejudice.
18. This court accepts each case turns on its own facts and there should not be an inflexible rule that a party should be debarred from adducing relevant evidence on the ground of inexcusable or unexplained delay: Keiron Peter Arch Rochester v Glory Sky Precious Metals Ltd [2023] HKCFI 2536, Wilson Chan J at [15].”
16.There is no question that the 2nd Plaintiff’s applications come very late when trial is imminent.
17.In my view, the delay is inordinate and inexcusable:-
(1) The 2nd Plaintiff had ample time and opportunities to pursue the interlocutory applications that are now before the court. There is no explicable reason why these applications were not pursued earlier.
(2) The 2nd Plaintiff could have applied to reinstate his claims and status as a party much earlier, but he chose not to do so.
(3) The 2nd Plaintiff did not promptly take action to pursue the present interlocutory applications after I made the order on 31 October 2024 reinstating his claims against the Defendant and his status as a party. There was a further delay of more than 2 months after my order dated 31 October 2024 was made.
(4) In fact, the questions regarding expert directions arose back in September 2022. For reasons best known to the Plaintiffs, they did not comply with paragraph 6 of the order made by Master Soong on 7 September 2022. The present application taken out by the 2nd Plaintiff seeking to adduce expert evidence simply flies in the face of the court’s order.
(5) In this connection, it is pertinent to note that the purported expert report of Lee Siu Leung was dated 8 April 2024. This was more than 8 months before the 2nd Plaintiff’s summonses were taken out.
(6) In my view, the delay on the part of 2nd Plaintiff is substantial and inexcusable, and his litigation conduct is deplorable.
18.I am also concerned about the disruption caused by the 2nd Plaintiff’s late applications and the prejudice that the Defendant will suffer if these late applications were allowed:-
(1) If the 2nd Plaintiff’s applications were allowed, there will be expert evidence and plausibly new materials.
(2) In my view, the Defendant will be prejudiced as it will be pressurized to address the 2nd Plaintiff’s expert evidence and contentions arising from the new materials under intense time pressure.
(3) There is a real risk that the trial may derail. Even if the trial does not derail, the disruption is most undesirable.
19.Moreover, the 2nd Plaintiff’s applications for specific discovery have no merits and are liable to be dismissed on this basis:-
(1) Insofar as the Defendant’s authorization letters, resolutions and voting records are concerned:-
(a) The 2nd Plaintiff seeks these documents for the purpose of contending that the Defendant’s solicitors on records, namely FCLK, have no authority to represent the Defendant in these proceedings.
(b) In Bold Shine Investment Ltd v Zheng De & Ors [2024] HKCA 767at paras 26-28, Chu VP, applying Kammy Town Limited v Super Glory Corporation (HCA 3524/2003, 14 January 2005) at paras 11, 13-14 and 18-21 (per A Cheung J (as Cheung CJ then was)), pointed out that a party seeking to raise a challenge in respect of questions regarding authority must do so at the earliest opportunity, and even the challenge involves substantial dispute of facts, the issue must be determined before the case proceeds further.
(c) In the present case, the Plaintiffs have applied to strike out the Defendant’s defence (which was prepared and filed by FCLK) on the basis that the same was filed without authority. In fact, the Plaintiffs substantively responded to the assertions in the defence that was prepared and filed by FCLK on the Defendant’s behalf in their reply dated 28 September 2021, and the said reply was signed by the 2nd Plaintiff.
(d) In the premises, I cannot see how the 2nd Plaintiff may seek to fish for materials at this late stage with a view to challenging the authority of FCLK.
(e) In any event, the Defendant and/or FCLK have already produced a certified true copy of the resolution dated 19 November 2024. As pointed out by Mr Westbrook SC, the said resolution was unanimous. I cannot see how the Plaintiffs’ intended challenge may take off the ground at all.
(f) I explained the aforesaid matters to the parties when I dismissed a similar application taken out by the 1st Plaintiff under its summons dated 10 December 2024 at the pre-trial review on 12 December 2024. Whilst the said summons was taken out by the by the 1st Plaintiff, the 2nd Plaintiff made oral submissions with a view to conniving me to accede to the 1st Plaintiff’s application. Bearing in mind the procedural history and the fact that the Plaintiffs jointly pursue a claim against the Defendant, I am of the view that the present discovery constitutes a flagrant abuse of the court’s process.
(2) As regards the contract(s) between the Government and the Defendant from 2015 to 2017, they are utterly irrelevant. I cannot see how the same may support or undermine the respective case of the parties. This is an unwarranted fishing expedition.
(3) As regards the Defendant’s internal guidelines or documents for safety inspection, it is also hard to see how these documents may support or undermine the respective case of the parties. There is no evidence showing that the Defendant disregarded its own internal guidelines. This is simply another unwarranted fishing expedition.
The Application to Vacate the Trial Dates in February 2025
20.I now deal with the 2nd Plaintiff’s application to vacate the trial dates from 17 to 21 February 2025.
21.Trial dates are milestone dates: see Order 25, rule 3(8).
22.The court shall not allow an application to vary a milestone date, unless there are exceptional circumstances justifying the variation: see Order 25, rules 3(2)-(3).
23.There are no exceptional circumstances in the present case.
24.For the reasons elaborated above, the late interlocutory applications for adducing expert evidence and specific discovery are unmeritorious and unjustified. They are liable to be dismissed.
25.The 2nd Plaintiff should have taken the present proceedings seriously. There was no legitimate reason why he did not abide by the case management directions provided by the court. He may take the view that he is not fully ready for the trial. However, he only has himself to blame, and this is a not reason to derail the upcoming trial, which was set down more than 10 months ago pursuant to the order made by Master Michael Lok on 1 March 2024.
Conclusion and Disposition
26.For all the above reasons, I dismiss the 2nd Plaintiff’s summonses dated 2, 6 and 17 January 2025.
27.However, in light of the Defendant’s concession, I grant leave for the Plaintiffs:-
(1) to amend the writ of summons and statement of claim herein as per the draft exhibited to the 2nd Plaintiff’s affirmation filed on 21 January 2025; and
(2) to adduce the 2nd Plaintiff’s supplemental witness filed 20 January 2025, save that exhibit 7 (which is a copy of purported expert report of Mr. Lee Siu Leung dated 18 April 2024) shall be excluded.
28.I am of the view that the 2nd Plaintiff’s applications for adducing expert evidence and specific discovery are utterly unmeritorious and indeed abusive and disruptive. Further, despite the Defendant’s concession, it remains the case that 2nd Plaintiff’s applications for leave to amend the statement of claim and to adduce his supplemental witness statement come very late, and he is seeking the court’s indulgence.
29.In order to show the court’s disapproval of the 2nd Plaintiff’s litigation conduct, I order the 2nd Plaintiff to pay the Defendant’s costs on an indemnity basis, summarily assessed at HK$90,000.
30.I thank Mr Simon Westbrook SC for his most helpful assistance.
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( Alan Kwong )
District Judge
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The 1st and 2nd Plaintiffs appeared in person
Mr Simon Westbrook SC, instructed by Fairbairn Catley Low & Kong, for the Defendant
[1] See paragraphs 1 and 2 of the order.
[2] See paragraph 1 of my order.
[3] See paragraph 1 of my order dated 29 November 2024.
[4] However, Mr Westbrook SC made it clear that the Defendant objected to exhibit 7 of the supplemental witness statement, which is a copy of the purported expert report made by Mr Lee Siu Leung dated 18 April 2024.
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