Lo Ka Chun v. Lo To and Another

HCA002015A/1980

1980, No. 2015

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Hon. Clough, J.

Date of Hearing: 28 February 1985

Date of delivery of Judgment: 28 February 1985

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JUDGMENT

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1. The situation which arises after the formal banding down of my judgment in this case is that, as I have already described in the final paragraph of my written judgment, that an action which began against both the Defendants in the 26th April 1980 and is today, some 4 years and 10 months old, is an action which still has at this stage no Statement of Claim. That has not always been the position but that is the position now. The action has had a life of nearly 5 years and now has no Statement of Claim. The reason for this state of affairs is the Plaintiff has failed to plead his case in a supportable manner. It was struck out by me on 22nd May 1984 as being thoroughly embarrassing.

2. Now because the 1st Defendant's own documents indicated to me there were matters that should be tried between him and the Plaintiff and leading counsel for the Plaintiff, at that time it was Mr. Beveridge, had indicated that the Plaintiff wanted to amend his pleading to allege that the 1st Defendant was a trustee holding the relevant assets on resulting trust or implied trust for the Plaintiff or his father's estate, I did not dismiss the action but gave the Plaintiff 6 weeks to apply to amend his pleading to avoid the dismissal of the action.

3. The order that I made is one that I commented on in my written judgment. On reflection, I consider that it was unfortunate that I made such an open-ended order and did not require the Plaintiff to specify at least what causes of action he intended to rely on if he were given an opportunity to cure his pleading by amendment. In the event for the reasons I have given in my Judgment, although there was very forceful argument advanced by Mr. Saville, again by Mr. Wong today, to the effect that the ambit of the order as far as amendment was concerned should be confined to the ambit of the writ, I have taken a more liberal view. In my written judgment for the reasons I have given, I entertained the application on a wide basis but nevertheless I have felt constrained to dismiss the application to amend.

4. The position now is that the Plaintiff has failed again to plead his claims against the Defendants in a supportable manner. By that I mean that his pleading has been held to be not only embarrassing but to lack material averments in important respects; and so his application which he made to amend pursuant to my order of the 22nd May 1984, has been dismissed.

5. Now I remain of the view, as expressed in my written judgment, that this is a case where the documents show that the Plaintiff may have a genuine claim if it can formulated in a supportable manner. However, I am firmly of the view that the action has been conducted in a manner that is oppressive to the Defendants. Although there are a welter of documents in the case it relates to matters and events going back in some respects to a time long before 1970, and the Defendants are still in the position where no supportable case has been pleaded against them and the action is nearly 5 years old. Furthermore they are holding assets which in 1978 they divided between them, and the effect of this action must necessarily have a very inhibiting effect on the application of many of these assets.

6. Put very shortly, it seems to me to be oppressive to conduct litigation in this way when the Plaintiff has already been given two opportunities, namely (1) the initial opportunity under the rules, and (2) the opportunity under my order, to formulate a supportable claim. The Plaintiff having failed to plead his case in a supportable manner when given a second chance, a second chance given to him to avoid dismissal of the action, has not only failed in his second chance, but I think it fair to observe that there were some 7 or 8 revisions of the pleading in the course of the hearing and at the end of the day the final version is the one that has been held to be insupportable. In my judgment it would be manifestly unfair on the two Defendants to permit this action to continue under these circumstances when there can be no excuse for the Plaintiff's failure to formulate his claim properly after being given a chance to do so to avoid having his action dismissed an the 1st Defendant's previous application. To permit the action to continue would, it seem to me, be to create the situation where there would demonstrably be one set of rules for the Plaintiff and another for the Defendants.

7. There is Another very important matter, and in this respect I have derived assistance, with respect, from the judgment of Mr. Justice Barker in the case of Cheung v. Cheung reported in 1981 HKLR 585. There the nature of the case was quite different but the important point that arises in the present case, in which I derive assistance from Mr. Justice Barker's approach, is that we are in the position here where there is no formulated claim now. The court is not in the position where it can look at proposed amendments. I do not in any way seek to criticise Mr. Swaine in that respect but the court has simply been told by Mr. Swaine, understably, that if the Plaintiff were given another opportunity to formulate his claim he would seek to rely, as he has done before, on implied or resulting trust I in relation to these assets. In my judgment this simply cannot be good enough in the situation that has arisen at this late stage in this action. If the Plaintiff is to be allowed to apply yet again to amend his pleadings, either on an open-ended basis or on the basis that he is intending to allege implied or resulting trust and so on, them can be no knowing where this will all end and the Defendants will, in my judgment, continue to be liable to be oppressed by the Plaintiff's misuse of the procedure of the court.

8. I have considered, and I raised this aspect of the case with counsel, whether the right course here is to do nothing and leave the Defendants to apply under Order 19 rule 1 for an order dismissing the action, but that would, in my judgment, be simply to postpone the real issue which is whether the action should be allowed to continue.

9. It is settled that the court has the inherent jurisdiction, which is now invoked by the Defendants, to prevent the misuse of its procedure in a way which would be oppressive and an abuse of that procedure. It is equally settled that this jurisdiction should be very sparingly exercised and only in exceptional cases. In my judgment this is an exceptional case where the court should draw the line and dismiss the action and leave the Plaintiff to bring another action, if he is so advised, to seek relief in a properly formulated writ and statement of claim. Subject to questions of limitation and lathes, there could be no question of res judicata arising because there has been no decision on the merits in these interlocutory hearings.

10. I emphasise that I take this course with great reluntance but in my judgment the Plaintiff has had more than his due of the indulgence of the court which owes a duty of impartiality to all the parties and which must in the last resort act to prevent its procedure being abused. So, for those reasons, I feel constrained to accede to the application made by the 1st Defendant and supported by the 2nd Defendant to dismiss this action under the inherent jurisdiction of the court.

Representation:

Mr. John Swaine, Q.C. with Mr. Anthony Neoh instructed by M/s S. K. Wong & Co. for the Plaintiff.

Mr. Ronny Wong instructed by M/s T.S. Tong & Co. for the 1st Defendant.

Mr. Miles of M/s Denton, Hall & Burgin for the 2nd Defendant.