Ernest Edward Walker v. Whitney Gill Newton and Another

Case No.HCA 2666/1971

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA002666/1971

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 2666 OF 1971

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BETWEEN
	ERNEST EDWARD WALKER	Plaintiff
	and
	WHITNEY GILL NEWTON	1st Defendant
	AMERICAN MARINE LTD.	2nd Defendant

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Coram: Mr. B.L. Jones, Assistant Registrar, in Chambers.

Date of Judgment: 28th day of December, 1971.

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DECISION

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1. This is an application by the 1st and 2nd defendants for an order for further and better particulars of the statement of claim endorsed on the writ of summons issued on the 18th November 1971, and that the time for service of the defence be extended for 14 days after service of the particulars and that all further proceedings be stayed until service of the particulars.

2. Order 18 rule 12(1)(a) of the Rules of the Supreme Court provides:-

12(1) Subject to paragraph (2), every pleading must contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words-

	(a)	particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies;
	(4)	Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then, without prejudice to the generality of paragraph (3), the Court may, on such terms as it thinks just, order that party to serve on any other party-

	(a)	where he alleges knowledge, particulars of the facts on which he relies, and
	(b)	where he alleges notice, particulars of the notice.
	(5)	An order under this rule shall not be made before service of the defence unless, in the opinion of the Court, the order is necessary or desirable to enable the defendant to plead or for some other special reason.
	(6)	Where the applicant for an order under this rule did not apply by letter for the particulars he requires, the Court may refuse to make the order unless of opinion that there were sufficient reasons for an application by letter not having been made.'

3. The allegations contained in the statement of claim are of fraud and undue influence and the amount of damages claimed by the plaintiff is US$1,398,584.40. As a result the provisions of Order 18 rule 12(1)(a) are particularly relevant to this application.

4. The plaintiff who appeared in person objects to giving the particulars on four grounds viz:-

	(1)	that the particulars should have been requested by letter;
	(2)	the defendants are stalling for time and that there is no defence to the action;
	(3)	that the particulars are too wordy and irrelevant;
	(4)	that a defence should first be filed.

5. Mr. Peard for the defendants submitted that he is unable to instruct counsel to settle a defence until the particulars requested have been delivered and further that if he had made the request by letter this would not have enabled him to file a defence within the time limited assuming that such particulars had in fact been given. The plaintiff stated that he would not have given the particulars requested even if they had been submitted by letter so that there is no validity to this ground of objection.

6. I do not accept the plaintiff's submission that the defendants are stalling for time nor that there is no defence to the action. Further I disagree that the particulars are too wordy and irrelevant. They are drawn quite properly and are in such form that the plaintiff can answer them.

7. On page 264 of Volume 1 of the Supreme Court Practice 1970 under the heading 'Fraud' the notes read as follows:-

It is now provided that necessary particulars of fraudulent intention must be contained in the pleading. The pleader should set out the facts, matters and circumstances relied upon to show that the party charged had or was actuated by a fraudulent intention. Fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts. General allegations, however strong may be the words in which they are stated, are insufficient to amount to an averment of fraud of which any Court ought to take notice. The acts alleged to be fraudulent must be set out, and then it must be stated that these acts were done fraudulently, otherwise no evidence in support of them will be received. Where the plaintiff alleged that the entries made by defendant in certain books were false, he was ordered to identify the false entries and to state in what respect these entries and to state in what respect these entries were false and the nature of the falsehood or fraud alleged in respect of each item.'

8. Having considered the application I am satisfied that the defendants are not in a position to prepare their defence until the particulars requested have been delivered. There will therefore be an order in the terms of the summons.

9. Date this the 28th day of December, 1971.

	(B.L. Jones)
	Assistant Registrar

Representation: