Lau Leung Wa and Another v. Lau Yue Kui and Another

HCAP 10/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE JURISDICTION

ACTION NO. 10 OF 2001

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BETWEEN

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Before: Hon Chung J in Court

Date of Hearing: 12 July 2005

Date of Ruling: 12 July 2005

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RULING  ON  CROSS-EXAMINATION

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1.This is the ruling on D1’s objection to the plaintiffs’ intended cross-examination effectively about the averment at para. 21, D1’s Defence which reads:-

“Before the 1^st Fee Agreement was entered into, [D1] was advised by [D2] that the 1^st Fee Agreement was reasonable, and that if the fees payable by the Estate under the 1^st Fee Agreement were later complained to be in any way unreasonable, the matter could be referred to the Court for quantification as to what is or would have been a reasonable fee in the circumstances”.

2.The question put to D1 (which is under consideration) was related to whether D1 should have asked for an interim bill from D2.  The plaintiffs admit that this question (and others following the same vein) is intended to test D1’s credibility as regards the pleaded oral advice quoted above.

3.Several grounds of objection have been raised by D1, including the lack of prior notice (by way of pleading or the plaintiffs’ opening), and the resultant lack of opportunity to respond thereto (by way of properly preparing the witnesses and/or other evidence).

4.It is also argued by D1 that this matter has at least implicitly been admitted by the plaintiffs in the Reply.  In this connection, D1 refers to para. 1, 2 and 5 of the Reply the material parts of which state:-

“This is the Reply to the key contentions raised in the Defence of [D1].  For ease of reference, a brief summary of the contention of the relevant Defence will appear in italic … ”;

“The Plaintiffs join issue with the Defence … save for what is admitted herein”;

“That [D1] has been advised by [D2] and reasonably believed that he was entitled to refer the fees payable … for taxation …

The Plaintiffs contend that [D1’s] freedom to have the costs taxed, contrary to the advice of Philip Chan & Co., would be significantly fettered by the fact that he entered into special agreements with the solicitors … ”.

5.It is trite law that there is a deemed joinder of issues even if no reply has been filed or served: RHC Ord. 18 rr. 13 and 14.  Under Ord. 18 r. 13(2), an admission can be by way of necessary implication.  Likewise, an admission can also be made in a reply: Ord. 18 r. 14(4).

6.The main issue in this ruling is whether an implied admission relating to the oral advice said to have been given by D2 has been made in the Reply.  I find that there is.

7.For this reason, I rule that the plaintiffs cannot cross-examine D1 for the purpose of testing his credibility about whether there was an advice pleaded in para. 21, D1’s Defence.

Mr Anderson Chow, SC leading Mr Albert Yau & Ms Eva Sit, instructed by Messrs Hau Lau Li & Yeung, for the Plaintiffs

Mr Chan Chi Hung, SC leading Mr Jeremy SK Chan, instructed by Messrs Chui & Lau, for the 1^st Defendant

Mr Dennis G Yu, instructed by Messrs Philip Chan & Co., for the 2^nd Defendant