Read the full judgment text of HCA 007781/1995 on BabelCite. This High Court CFI judgment was delivered on 19 March 1998 before Cheung J.
Civil procedure – amendment of writ and statement of claim – substitution of plaintiff – whether Registrar had jurisdiction to entertain a second identical summons after the Master had dismissed an earlier summons on a procedural ground – whether the discretion to extend time to appeal the Master's order should be exercised – construction of O.20 r.5 of the Rules of the High Court – whether O.20 r.5(3) applies to within-limitation amendments – whether O.15 r.6(3) requires a supporting affidavit on an application by the existing plaintiff to amend the writ to substitute a new plaintiff – Wong Kam Hong trading as Continental Knitting Factory issued proceedings against Triangle Motors Limited; Wong was in fact acting as agent for Great Bright Limited in the underlying transactions, being sole proprietor of Continental Knitting Factory and a director of Great Bright Limited – On 3 September 1997 Wong filed a summons to re-amend the Amended Writ and Statement of Claim to substitute Great Bright Limited as plaintiff; the Master dismissed the summons on 15 September 1997 for want of a supporting affidavit under O.15 r.6(3) – Wong issued a fresh identical summons on 10 November 1997, which the Registrar allowed on 17 November 1997 – Defendant appealed the Registrar's order, and Plaintiff applied for an extension of time to appeal the Master's dismissal – First issue: whether Registrar had jurisdiction – Held (Cheung J): No – following Sanyo Electric Trading Co Ltd v Leung Kwok Hing and the abuse-of-process principle in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd, once a summons has been dismissed a dissatisfied party must appeal; the limited exceptions for O.14 applications and contempt proceedings (Jelson (Estates) Ltd v Harvey) should not be extended, and the proper cheaper route was to seek a rehearing before the order was perfected (In re Harrison's Settlement) – Registrar's order set aside – Second issue: whether extension of time to appeal the Master should be granted – Held: Yes – applying Norwich and Peterborough Building Society v Steed, the five-month delay was reasonably explained, the appeal had good prospects, and there was no prejudice to the Defendant (the application remaining within the limitation period); Re Adhiguna Meranti makes clear that absence of prejudice is not itself a ground for extending time – Third issue: whether O.20 r.5(3) governs within-limitation amendments to substitute a plaintiff – Held: No – paragraphs (3), (4) and (5) operate only as supplements to paragraph (2), which governs after-limitation amendments; for within-limitation amendments the governing test is the 'just' test in O.20 r.5(1), supplemented by the modern practice favouring addition or substitution of plaintiffs (Note 15/6/2, Supreme Court Practice) so that the case can be adjudicated – Fourth issue: whether an affidavit was required under O.15 r.6(3) – Held: No – O.15 r.6(3) applies only to a person applying to be added as a party; an existing plaintiff applying to substitute another party need not file a supporting affidavit, and the general rule is that no affidavit is required on a summons to amend (Sweet & Maxwell's High Court Litigation Manual para.2-031) – the Master therefore erred – Allowing the Plaintiff's appeal against the Master and granting the extension of time, the court set aside the Master's order and permitted the proposed amendment – costs: each party to bear its own costs of the applications, costs of the consequential amendment to the Defendant in any event, the Master's costs order unchanged, and the Registrar's costs order on the amendment deleted; service of the re-amended writ and amended Statement of Claim dispensed with, and the Defendant to file and serve an amended defence within 14 days.
Legal issues: Whether the Registrar had jurisdiction to entertain a second identical summons after the Master dismissed an earlier one on procedural grounds · Whether the Plaintiff should be granted an extension of time to appeal against the Master's order dismissing the 1st Summons · Whether O.20 r.5(3) governs amendments to substitute a plaintiff made within the limitation period · Whether O.15 r.6(3) requires a supporting affidavit on an application by the existing plaintiff to amend the writ to substitute a new plaintiff
Outcome: Defendant's appeal against the Registrar's order allowed and the Registrar's order set aside; Plaintiff's application for an extension of time to appeal the Master's order granted; Plaintiff's appeal against the Master's order allowed and the Master set aside; Plaintiff permitted to re-amend the Amended Writ and amend the Statement of Claim