Wong Wai Chun v. Chan Yuet Wah and Another

HCA001296/1975

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 1296 OF 1975

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Coram: Pickering, J. in Chambers.

Date of Judgment: 15th January, 1976.

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DECISION

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1. The plaintiff, having consented to an order giving leave to the defendants to file an Amended Defence, now seeks to have the first paragraph of that Amended Defence struck out under the provisions of o.18 r.19 and under the inherent jurisdiction of the court. The plaintiff describes that first paragraph as being embarrassing and/or tending to prejudice the fair trial of the action in that admissions made by the second defendant in his original Defence were withdrawn improperly and/or without leave in the Amended Defence.

2. The action is a running down action and in the original Defence, the collision, the second defendant's ownership of the motor car involved and the fact that the car was driven by the first defendant are all admitted. In the Amended Defence no admission is made as to the occurrence of any collision and it is denied that the second defendant was the owner of the car involved. Both these denials are contained in the paragraph of the Amended Defence which the plaintiff now seeks to have struck out.

3. Mr. Dicks, for the plaintiff, cites the case of Hollis v. Burton⁽¹⁾. Whilst agreeing that the principles concerning the withdrawal of admissions are not there very clearly expounded, counsel urges that the question of withdrawal of admissions was very clearly before the Court in that case before the Court allowed the Defence to be amended. As I see it, in Hollis v. Burton⁽¹⁾ the very nature of the proceedings rendered that inevitable for the Motion was precisely for the purpose of seeking leave to withdraw an admission and did not ask leave to amend the Defence. That application followed orally once the leave sought by the Motion had been given. In the present case the application was to amend the Defence but that this would involve a withdrawal of admissions was every bit as patent as in Hollis v. Burton⁽¹⁾ for a single glance at the original Defence and the proposed Amended Defence must have sufficed to show that the original Defence was being stood upon its head. The learned registrar could not fail to have been aware of that, still less could the plaintiff's solicitors when giving consent to the filing of the Amended Defence. Before the order granting leave for such filing was made, it was just as clear as in the Hollis case that the process necessarily involved the withdrawal of admissions.

4. It is the complaint of counsel for the plaintiff that there is no mention in the application to file an Amended Defence, nor yet in the affidavit in support thereof, of the withdrawal of admissions and that only by reading the old and the new Defence, is it apparent that that is what is involved. Thus, counsel claims, the withdrawal of the admissions was not made in the proper way in a procedural sense and had it been apparent that the withdrawal of these particular admissions was involved, leave to file an Amended Defence would not have been granted.

5. I find no substance in this argument for, as I have already said, a single glance at the two documents, that is, the Defence and the proposed Amended Defence, was sufficient to put the whole world upon notice that what was here involved was the withdrawal of admissions.

6. Counsel further relied upon the case of Hollis v. Burton⁽¹⁾ for the proposition that any admission made "inadvertently" may be withdrawn and the pleading amended accordingly. Here it was said, the original admissions had not been shown to have been made inadvertently. That may be so but there is another important distinction between the present case and that of Hollis v. Burton⁽¹⁾. The Order granting leave to withdraw the admission made in the Hollis case was not a consent order whereas in the present case the leave to file an Amended Defence involving the withdrawal of admissions, was by consent and so complete was that consent that the plaintiff's solicitors did not even attend upon the summons. This, it seems to me in the circumstances of this case, presents an insoluble difficulty to the plaintiff. I would here add in parenthesis that at one stage Mr. Dicks appeared to invite me to recall the order since it had not been drawn up but this invitation was later withdrawn. It was in any event without substance since under o.42 r.4, an order granting leave to amend a pleading, unless it imposes special terms or includes special directions, need not be drawn up.

7. What then is the effect of the fact that the order granting leave to file the Amended Defence was a consent order? I think it is fatal to the plaintiff's present application. The principle is that an order by consent in an action is not a contract, but it is sufficient evidence of the contract upon which it is based, and such contract is not less a contract and no less subject to the incidents of a contract because there is superadded the command of a judge (Wentworth v. Bullen⁽²⁾, Conolan v. Leyland⁽³⁾). The contract is one by which all parties to the order are bound. More modern authority is contained in the case of Purcell v. F.C. Trigell Ltd⁽⁴⁾. where Winn. L.J. said:

"..... If a consent order is to be set aside it can really only be set aside on grounds which would justify the setting aside of a contract entered into with knowledge of the material matters by legally competent persons."

8. To this, Buckley, L.J. added:

"In my judgment, this order should be regarded as having a binding contractual effect which the plaintiffs were perfectly entitled to insist upon."

9. It is true that contracts may be set aside or varied on such grounds as fraud, mistake or misrepresentation but there is no evidence of anything of that kind in this case, and as Mills-Owens, J. said in Ho Shiu-kwong v. On Chuen Kam Koon Shoes Shop⁽⁵⁾, a case which related to time limits,

"The Courts have never assumed a general power to vary time limits fixed by the parties themselves in their contract, on some basis of doing equity."

10. Other cases were cited to me in the course of argument but they did not concern consent orders and for that reason have little application to the facts of the present case. I am aware that in Ho Shiu-kwong's case, as in certain others to which I have referred, the application was to set aside the consent order whereas in the present case the application is to strike out part of the Amended Defence. The effect is the same, however, for what is really under attack is the consent order which is evidence of a contract between the parties. Incredible as the consent given by the plaintiffs' solicitors was, it is not open to me now, to interfere with that consent by striking out paragraph 1 of the Amended Defence and the order sought under paragraph 1 of the plaintiff's present application must be refused.

11. Argument upon the remaining paragraphs of the application would have been unnecessary had my decision upon the first paragraph thereof gone the other way. In the light of what I have said, however, it remains for me to hear argument upon these further applications and that I will now do.

Representation:

A. Dicks (Fairbairn, Kwok & Wang) for Plaintiff.

K. Bokhary (J.S.M.) for 2nd Defendant.

(1) 1892 3 Ch. 226

(2) 9 B & C 840

(3) 1884 27 Ch. 638

(4) 1970 3 W.L.R. 884

(5) 1971 H.K.L.R. 34