Ng Lai Kwan Fanny v. Vico Infant & Gift Products Co Ltd and Another

DCCJ 5911/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5911 OF 2006

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BETWEEN

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Coram : H.H. Judge Chow

Hearing date : 31^st October 2007

Date of handing down Decision : 21^st November 2007

DECISION

1.This is the application by the 1^st Defendant for an order that the decision of Master R. Lai given on 12September 2007 be set aside and the Plaintiff’s application for Better Particulars of the Defence be dismissed and the costs be to the 1^st Defendant in any event.

2.In this action the Plaintiff is suing the 1^st Defendant for the repayment of a total sum of $1,150,000.  There were alleged repayments made by the 1^st Defendant to the Plaintiff, and the alleged outstanding loan is $859,600. 

3.Paragraph 6 of the Statement of Claim is set out below:-

“	6.	The loans, in total amounted to one million one hundred and fifty thousand Hong Kong dollars (HK$1,150,000.00) was delivered to the 1st Defendant’s bank account by the Plaintiff on :-
	Date		Amount (HK$)
	26th January 2005		$300,000.00
	29th January 2005		100,000.00
	29th March 2005		150,000.00
	28th September 2005		300,000.00
	14th October 2005		300,000.00”

4.Paragraph 8 of the Defence states:-

“	Subject to what is pleaded herein below, paragraph 6 of the Statement of claim is not admitted.  In particular, the 1st Defendant specifically denied that the monies deposited in the 1st Defendant’s bank account was the said loans.  The Plaintiff is therefore put to strict proof thereof.”

5.On 26.4.2007, the Plaintiff’s solicitors wrote to the Defendant’s solicitors, requesting for further and better particulars of Paragraph 8 of the Defence.  The request is as follows:-

‘	1.	Under Paragraph 8 of the Defence
		“…the 1st Defendant specifically denied that the monies deposited in the 1st Defendant’s bank account was the said loans”
		Request:-
		(a)	If the payments were not loans lent to the 1st Defendant.  Please state the nature of such payments and the reasons why such payments were made by the Plaintiff to the 1st Defendant.
		(b)	… … …
		(c)	… … … .’

6.On 12 September 2007, the summons was heard by Master R. Lai.  Master Lai ordered the 1^st Defendant to provide an answer to request (a) of the Request for Further and Better particulars of the Defence.  Now the 1^st Defendant appealed against that order.

7.The 1^st Defendant submits:-

“	14.	The nature of the 1st Defendant’s case on this aspect of the issue is perfectly clear; that the 1st Defendant never received or agreed to lend monies from the Plaintiff whether as alleged.
	15.	By reason of the aforesaid, the 1st Defendant’s approach does not involve the assertion of an affirmative case beyond what is necessarily involved in the 1st Defendant’s traverse of the Plaintiff’s negative allegation and thus Request for F & BP should not be allowed.”

8.This is not correct.  In paragraph 8 of the Defence, the 1^st Defendant admitted that monies were deposited into its bank account.  This is a positive assertion of fact.  It merely denies that the monies was deposited were the said loans.  It does not say that no monies as alleged in paragraph 6 of the Statement of Claim were deposited in its account.  On this basis the Plaintiff is entitled to know the nature of such payments and why such payments were made.  The Plaintiff is entitled to know the Defendant’s case she has to meet, so that she could prepare for it in advance.  The order made by Master R. Lai on 12 September 2007 is a proper order.  Accordingly, I dismiss the 1^st Defendant’s application.

Costs

9.I make an order nisi, to be made absolute in 14 days’ time, that the 1^st Defendant is to pay costs of this application to the Plaintiff (no certificate for Counsel).

The Plaintiff : represented by Mr. Lee Yee Hung, instructed by M/S. Wong, Fung & Co., Solicitors.

The 1^st Defendant : represented by Ms Lorinda Lau, instructed by M/S. Oliver C.M. Chan & Co., Solicitors.