Foo Sui Chung, The Executor of the Estate of Wong Και Wah, Deceased v. Wong Tat Shan, The Administratrix of the Estate of Wong Каι So, Deceased

HCA 419/2020

[2026] HKCFI 5052

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 419 OF 2020

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BETWEEN

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DECISION

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Introduction and Background

1.I have before me an application by the Plaintiff (“P”) by Summons dated 18 September 2025 (“the Summons”) for leave to amend the Reply and Defence to Counterclaim.

2.In this action, commenced on 21 April 2020, P’s claim was originally to rescind and set aside the assignment (“the Assignment”) and agreement for sale and purchase (“the Agreement”), both dated 3 May 2014, of Flat I on 8/F, May Sun Building, 1-15 Smithfield, 55-57 Catchick Street & 7-8 New Praya, Kennedy Town, Hong Kong (“the Property”) or alternatively, seek payment of the sum of HK$3.8M, being the consideration for the Property, from the Defendant (“D”). The Statement of Claim was filed on 13 November 2020 and sought only the HK$3.8M consideration, interests and costs.

3.On 1 September 2021, D filed his Defence and Counterclaim pleading that P never had 100% of the beneficial interest or title of the Property and that P was not entitled to the claim of HK$3.8M. In gist, it was pleaded that the Property was left by D’s late parents and each of the siblings (including P and D) was entitled to 1/5. Based on the common agreement/intention reached amongst the siblings in or about 1994, P would be the nominee holding the Property on trust for the benefit of each and every sibling, and she would transfer the same to each of the sibling or such designated nominee or representative upon request (“the Common Agreement and/or Intention”). In accordance with and in detrimental reliance on the Common Agreement and/or Intention, a Deed of Family Arrangement dated 8 October 1994 was entered into and an Assent to convey the Property to P in her sole name was executed. In about 2014, to give effect to the Common Agreement and/or Intention, P and D executed the Assignment and the Agreement which conveyed the Property into the sole name of D and P acknowledged the receipt of HK$3.8M (“Receipt Clause”), the stated consideration for the Assignment. D pleaded that P is estopped from claiming the sum of HK$3.8M by acknowledging receipt of the same. D counterclaimed against P for inter alia a declaration that P was holding the Property on trust for the siblings, mesne profit and vacant possession of the Property.

4.On 20 October 2021, P filed the Reply and Defence to Counterclaim. The Reply merely joined issue with D on the Defence and Counterclaim, and denied the Counterclaim by repeating the Statement of Claim.

5.The proposed amendments to the Reply and Defence to Counterclaim, in gist, seek to plea a new case that there was an alleged common understanding and agreement between P and D prior to the execution of the Agreement and the Assignment that D would remain liable for the consideration upon demand notwithstanding the transfer of title and execution of the Assignment including the Receipt Clause, and it was by reason of the fact that there was no discharge of his obligation to pay the consideration that D had allowed P to continue to occupy the Property rent free. P claims that by reason of D’s conduct, D is estopped and/or waived the right to assert that his payment obligation had been discharged or rely on the Receipt Clause to deny the obligation to pay the consideration.

6.P and D had passed away in 2022 and this action is continued by P’s executor on behalf of P’s estate and D’s daughter on behalf of D’s estate.

7.Witness statements were filed in 2024 and 2025, and this action has been set down on 9 September 2025 (but only a year after the order granting leave for setting down) for trial commencing on 12 November 2026 (with 6 days reserved) and the pre-trial review (“PTR”) scheduled for 2 July 2026 (i.e. next week).

8.Ms Tjia, counsel, appears for P and Ms Lee, counsel, appears for D.

Applicable Principles and Discussion

9.The applicable legal principles concerning last minute pre-trial interlocutory applications taken out shortly before a PTR were set out in Liu Hon Wong and Others v Liu Chee Kwan and Another [2022] HKCFI 3157 at §§20-27 per DHCJ MK Liu. See also China Forestry Holdings Co Limited & Ors v KPMG [2021] HKCFI 1519 per Anthony Chan J (as he then was) at §§8, 22 and 24. These include:

(1)  A PTR is not an extension of the CMC. The court expects a case to be ready for trial. Late interlocutory applications may be dismissed on the basis of delay alone since an adjournment of a trial is prejudice to a party, who has every right to expect a trial fixed months ahead with due notice to the parties can proceed without disruption and time and costs being wasted;

(2)  There may also be prejudice to the opposing party to have to divert their resources to deal with the late interlocutory application and disrupt their preparation for trial. It is no answer to contend the opposing party should use the time leading up to trial to meet the new case by filing consequential amendments and further evidence in response. There is no reason to require the innocent party to “squeeze its investigation, preparation and decision-making processes all into the coming few weeks”;

(3)  Last minute pre-trial applications also disrupt the preparation for trial on the part of a trial judge in terms of reading into the case. Instead of getting himself or herself familiar with the issues that have to be tackled at the trial, the judge would have to divert attention and spend time and efforts on such application. There may also be serious disruption to the court diary as the court has to struggle to find some time during the limited time before the trial to hear the applications;

(4)  A heavy burden is on the applicant to demonstrate by affidavit evidence exceptional circumstances to explain and justify the delay and the application may be dismissed on the ground of delay alone if not properly or satisfactorily explained; and

(5)  If allowing a last-minute pre-trial application would derail milestone dates such as PTR or trial dates or prolong the trial beyond the time allocated, the court may refuse leave, even if it means that the applicant would have great difficulty in establishing his case.

10.Specifically, in relation to a late application to amend, in China Forestry Holdings Co Limited at §9 the learned judge adopted and agreed with the following dicta of Mrs Justice Carr DBE in Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm) at §38(b), (e) and (g) (cited at §8):

“Where a very late application to amend is made the correct approach is not that the amendment ought, in general, to be allowed so that the real dispute between the parties can be adjudicated upon. Rather, a heavy burden lies on a party seeking a very late amendment to show the strength of the new case and why justice to him, his opponent and other court users requires him to be able to pursue it…;

gone are the days when it was sufficient for the amending party to argue that no prejudice had been suffered, save as to costs. In the modern era it is more readily recognised that the payment of costs may not be adequate compensation;

a much stricter view is taken nowadays of non-compliance with the Civil Procedure Rules and directions of the Court. The achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations because those obligations not only serve the purpose of ensuring that they conduct the litigation proportionately in order to ensure that their costs are kept within proportionate bounds but also the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the courts enable them to do so.”

11.See also Hongkong Changyi Real Estate Development Limited v Neo-China (Group) Infrastructure Investment Development Limited (unrep) HCA  1576/2011, 25 February 2014, a decision of Mimmie Chan J (cited in Liu Hon Wong at §25) and more recently, Electronic Control Technology Limited v Wolfango Cozzi & Ors [2025] HKCFI 1860 per DHCJ Alan Kwong at §§15-16.

12.Even in the case relied upon by Ms Tjia, Li Shiu To v Li Shiu Tsang & Ors (unrep) HCA 416/2003, 14 August 2012, DHCJ Lok (as he then was) made clear that, post-CJR, if a party makes a late application to amend the pleading with effect that the trial date may have to be adjourned, which is now considered a serious prejudice to parties involved in litigations, the court would be very reluctant in allowing the application unless there are exceptional circumstances (see §17). Neither does the case of Igal Dafni v CMA CGM SA [2013] 2 HKLRD 73 at §§19-20 assists P as it was recognized the later the application the greater the scrutiny should be given to the late application and that where a new defence is pleaded for the first time, it is likely to cause prejudice, delay and wastage of costs.

13.I do not accept Ms Tjia’s submissions that because the factual basis for the positive case of the estoppel has been canvassed in the evidence that there is no prejudice. This is not a sufficient answer to a late application to amend: see Hesson Development Limited v Tang Ki Fan Tso (unrep) HCA 5584/1998, 30 September 2003, §11 per Chu J (as she then was) and Liu Hon Wong at §19.

14.It is trite that it is the pleadings that will define the issues at trial and define the scope of evidence, and not the other way round: see Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 at §21. If the amendments were allowed, there necessarily would have to be further amendments to pleadings (or at the very least, consideration whether to amend) and consideration by D whether to file supplemental witness statements and/or seek discovery which would cause prejudice to D at the very least by distraction from preparation for the trial even if at the end of the day no further evidence is filed or could be filed to counter what has been alleged to have taken place in 2014. See Hongkong Changyi Real Estate Development Limited at §3 which is apposite to the present case:

“The objectives of the Civil Justice Reform are to encourage early preparation for trial, dealing with cases expeditiously, cost-effectiveness and proportionality. Although there is no doubt that the primary aim in exercising the powers of the court is to secure the just resolution of disputes in accordance with the substantive rights of the parties, it can hardly be said to be just if a party is required, as a result of late applications made by its opponent at the last minute, in disregard of timetables laid down by the court in good time at case management hearings and pretrial review hearings, to plead to amendments, consider new documents and evidence, and to file supplemental witness statements at the eve of trial.”

15.The distraction to trial preparations is demonstrated by the fact that Master Hui’s Order dated 23 September 2024 required inter alia the filing of Joint Statements of Agreed Issues not less than 14 days before the PTR which has not been complied with given the present application has not been determined. Furthermore, Ms Lee said that had the new case been pleaded in 2021, she would no doubt have taken instructions from D (which was still alive and the one privy to the alleged common understand and agreement), taken a statement from D and made enquiries with the solicitors who prepared the Assignment. These are all real prejudice.

16.No affirmation has been filed by P to explain the delay. The court is simply not able to consider whether the delay stems from a mere omission as asserted in P’s Skeleton Submissions.

17.I also do not accept the submissions, by referring to the case of Li Shiu To and Multi-Winner Investment Limited & Anor v Lau Ming Yee (unrep) HCA 880/2011, 10 September 2014 (which were cases where the trial dates had yet to be fixed at the time of the application), that delay without any explanation should only be one factor. Rather, it is a very important factor: see the authorities cited above including Hongkong Changyi Real Estate Development Limited, §1 and To Pui Kui v Ng Kwok Piu [2014] 5 HKLRD 103 (CA) at §8.

18.The case of Asgain Co Ltd v Cheng Ka Ya (No 2) [2018] 2 HKLRD 641 was an exceptional case. The Court of Appeal allowed re-amendment of the Reply at the late stage (during the appeal) because the plea of part payment was pleaded in the Statement of Claim and the defendant had a full and fair opportunity to test the allegation of part payment, the factual issue was fully canvassed and considered by the trial judge leading to the finding by the judge after a trial on such issue. The Court of Appeal was satisfied that leave should be granted to amend given there was no prejudice which cannot be compensated by costs. See §§19-22.

19.To the extent that it was submitted from the Bar table that the delay is due to change of counsel, a change of legal team rarely justifies last minute amendment: see Hongkong Changyi Real Estate Development Limited, §1.

20.Bearing in mind the absence of explanation for the delay and lack of any exceptional circumstances to justify the late application, the delay already in the setting down of the trial of this action and the hearing of the Summons, the disruption to the parties’ and the court’s preparation for trial and possible derailing of the trial dates if further evidence has to be filed or there is further discovery leading to a delay of the trial and waste of time, costs and judicial resources contrary to the CJR objectives and in view of the elderly age of the witnesses in this case, I would dismiss the Summons with costs to D. Whilst Ms Lee also made other submissions on why the Summons should be dismissed, it is not necessary for me to go into those grounds as I am satisfied that the Summons can be dismissed on delay alone.

[Discussion on costs]

21.I order the Summons be dismissed with costs to D, to be summarily assessed, payable forthwith. P’s own costs is to be taxed in accordance with the Legal Aid Regulations. I have also given directions for the lodging and serving of List of Objections and any reply for summary assessment of D’s costs of the Summons by me on paper.

Ms Josephine Tjia, instructed by Messrs K.B. Chau & Co, for the Plaintiff

Ms Connie Lee, instructed by Messrs Long An & Lam, for the Defendant