Hu Yuan Chang v. Au Wing Mui, Margery

DCCJ001658/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 1658 OF 1981

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Coram: Judge D'Almada Remedios in Chambers

Date of Judgment: 9th July, 1981

Re: Application for Further and Better Particulars

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DECISION

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1. In this action the plaintiff claims possession of premises as a dwelling for his mother.

2. In the inter parte summons now before me, the defendant seeks the following Further and Better Particulars of the Statement of Claim, namely:

3. In considering an application of this nature, that which is evidentiary is to be distinguished from that which is material.

4. I was at first inclined to the view that the age and occupation of the plaintiff's mother are not material avertments that require to be pleaded. However, having heard what Mr. S. Chow, for the defendant had to say, I take into account that the age and occupation of the mother may well be a factor or one of the factors that may be relied upon by the plaintiff for the purpose establishing, or alternatively, taken into consideration by the Court for the purpose of deciding, the question of "reasonable requirement". I have, therefore, decided that the defendant be informed of the age and occupation of the plaintiff's mother. I come to this decision (not without some hesitation) because: (a) today, in litigation, unlike what is was in the old days, we now play with our cards on the table; (b) the furnishing of this information would not in any way prejudice the plaintiff; and (c) there is no violation of established principles in making such order.

5. The next question relates to an enquiry by the defendant of the number of persons who will be occupying the premises together with the mother. In my view, this does not fall within the ambit of 'particulars'. Bullen & Leake on Pleadings, 12th Edition at p.113 has this to say: "It is not the function of particulars to obtain information which can only be obtained by interrogatories, and the Court will not sanction any attempt to administer interrogatories in the guise of seeking particulars". Furthermore, it will be noted that in the statement of claim, the plaintiff does not allege that the premises are required by anyone else except the mother. So if the plaintiff or his mother invites anyone else to occupy the premises with the mother - an invitation which may or may not be made or if made may or may not be accepted - is evidentiary rather than material. If the premises are reasonably required for the occupation of the plaintiff's mother, it does not seem to me to be material if either the plaintiff or his mother chooses to invite any other person to occupy it with the mother. This being so I decline the order sought in this regard.

6. Lastly, the defendant wishes to know the grounds upon which it is alleged that the premises are "reasonably required" for use by the mother. I regard this to be material. If the plaintiff alleges that the premises are "reasonably required" for the mother, the defendant is entitled to know in what way it is reasonably required since the defendant he is entitled to know what is the case she has to meet. It is no answer to say that by giving such particulars, the plaintiff may have to disclose part of the his evidence. If it is material that it must be supplied even if by doing as it may involve disclosure of some evidence. I, therefore, order that the plaintiff state the reason or reasons why the premises are "reasonably required" for the use of the mother. The particulars as ordered are to be furnished within 14 days and the proceedings stayed until the order is complied with. Costs of the application to be the Defendant's in any event.

Representation:

Miss C. Wong (Woo, Kwan, Lee & Lo) for plaintiff.

Mr S. Chow (Deacons) for defendant.