Tseng-hsiang Wang and Another v. Yamaichi International (HK) Ltd

HCA006482/1980

BETWEEN:-

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Coram: The Honourable Mr. Justice Jones in Chambers.

Date: Tuesday, 18th October 1983.

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J U D G M E N T

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1. The defendant appeals against the refusal by Master Emerson on the 12th September 1983 to grant leave to re-amend the defence.

2. The 1st plaintiff is the managing director and chairman of the 2nd plaintiff. The defendant company carries on business in Hong Kong as a stock broker for stocks and shares of public companies quoted on the Japanese Stock Exchanges, and is a subsidiary of Yamaichi Securities Company Limited, a leading stock broker in Japan. Yamaichi Securities Company Limited was the underwriter of shares in Katakura Industry Company Limited, a public company incorporated in Japan.

3. The plaintiffs issued a writ on the 13th November 1980 claiming damages on the grounds that in September 1978 they were induced to purchase shares in Katakura Industry Company Limited as a result of negligent misstatements contained in a list of real property assets supplied by the defendant which the defendant knew to be untrue.

4. A defence was filed on the 11th February 1981 in which the defendant claims that the contents of the list were true at the time when it was handed to the plaintiffs and or in the alternative that no duty of care was owed. Laches, estoppel and waiver have also been pleaded whilst the defendant alleges that the plaintiffs have failed to mitigate any loss they may have suffered. An amended statement of claim was filed on the 21st February 1983 which added allegations of fraud and a claim for exemplary damages. The amended defence was filed on the 27th march 1983.

5. The defendant applies to re-amend the defence by deleting particulars of their contention that the contents of the list were true and substituting an allegation that the list upon which they relied was obtained from Yamaichi Tokyo. The defendant also seeks an amendment to plead contributory negligence.

6. Mr. Taylor, the defendant's solicitor accepts responsibility for the application to amend at this late stage because he had misunderstood previous instructions he had received from his clients.

7. Mr. Ching for the plaintiffs has challenged the admission of Mr. Taylor's affidavit and his explanation. Krakauer v. Katz (1954) 1 W.L.R. 278 was cited as authority that there is no right to adduce further evidence on an interlocutory matter, but is a matter of discretion. I find no reason in this case to exclude the affidavit and I therefore exercise my discretion in favour of the defendant. With regard to the explanation, I find nothing sinister in the matters that were canvassed before me nor do I consider that there is any evidence of mala fides. The question of delay by the defendant was raised, but can hardly be justified having regard to the dilatory prosecution of this action by the plaintiffs.

8. Mr. Ching further submitted that the plaintiffs would be vexed as a result of the amendment and cited Lawrance v. Lord Norreys 15 App. Cas 210. In that case the Court was concerned with a vexatious action brought by a plaintiff. I do not conceive that a plaintiff can be described to be vexed when a defendant wishes to defend himself. Although criticism has been levelled at the proposed amendments because they have not been properly particularised the plaintiffs may call for further and better particulars.

9. In my opinion no injustice or prejudice will be caused to the plaintiffs by granting the defendant's application provided that they are comoensated in costs. Accordingly the appeal is allowed and the order of the Master will be set aside. There will be an order that the defendants have leave to re-amend the defence service to be dispensed with. The plaintiffs will have leave to amend the reply within 14 days. Costs thrown away as a result of the amendments will be to the plaintiffs in any event. Costs of the appeal will be to the defendant.

Representation:

Mr. Charles Ching, Q.C. & Mr. K.H. Woo instructed by K.Y. Woo & Co. for plaintiff.

Mr. Robert Ribeiro (Johnson, Stokes & Master) for defendant.