Grandco (Holdings) Ltd. v. Harbour Wealth Co. Ltd.

HCA003388/1998

HCA 3388/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3388 OF 1998

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Coram: The Hon. Mr. Justice Sakhrani in Chambers

Date of Hearing: 14 July 1999

Date of Ruling: 14 July 1999

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R U L I N G

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1. The Plaintiff seeks to put in the 5th affirmation of Fong Chun Kin at the hearing of this appeal as well as the affidavit of William Leung King Wai which was filed on 13th July 1999. The 2nd affidavit simply puts in a revised bill of costs which has already been supplied to me by counsel for the Defendant together with his skeleton submissions. That being so, counsel does not object to the revised figures being placed before the court, and therefore, it is not necessary to place the affidavit of William Leung King Wai before the court. The court has the revised skeleton bill of costs and can compare it with the original bill of costs which is already in evidence.

2. The 5th affirmation of Fong Chun Kin does no more other than to exhibit the 3rd and 4th affirmations of the same deponent. The Plaintiff tried to rely on the 3rd and 4th affirmations of Fong Chung Kin before Master Muttrie at the hearing on 8th June 1999. The Defendant's summons for security for costs was issued on 4th February 1999 and on 12th February 1999, Ms. Registrar Chu gave directions for the filing of evidence. The Plaintiff had leave to file and serve within 14 days from the date of the order the affirmation in opposition and the Defendant was to have leave to file and serve within 14 days thereafter the affirmation in reply. It was directed that no further affirmation shall be filed without leave.

3. The Plaintiff did not file any affirmation within the time stipulated. However, on 1st June 1999, the Plaintiff issued a summons for leave to file the 3rd and 4th affirmations out of time. That summons was heard by Master Muttrie on 8th June 1999 and having heard arguments from counsel, he dismissed that application. He proceeded to hear the application for security for costs and also dismissed the Defendant's summons for security for costs. The matter before me now is an appeal on the Master's decision dismissing the application for security. There is, however, no appeal lodged against the decision of the Master dismissing the Plaintiff's summons dated 1st June 1999 seeking leave to file affirmations out of time.

4. I accept that it is common practice for a judge in chambers on an appeal, subject to the question of costs, to admit further or additional evidence at the hearing of the appeal. However, that depends on the circumstances of each case. Here, the evidence that is sought to be put before me by the 5th affirmation of Fong Chun Kin is material which was available at the time of the hearing before the Master. The Master considered that the Plaintiff should not be allowed to rely on that evidence. There is no appeal from that decision.

5. In the circumstances, I do not think that I ought to allow the Plaintiff to rely on that very same evidence at the hearing of the appeal before me. And in the exercise of my discretion, the Plaintiff cannot rely on the 5th affirmation of Fong Chun Kin.

Representation:

Mr. Andrew Mak instructed by Messrs. William K.W. Leung & Co. for the Plaintiff.

Mr. Johnson Lam instructed by Messrs. W.M. Lo & Co. for the Defendant.