Cheng Oi Kuen t/a Wing Yan Fashion Co v. Ontrend (H.K.) Ltd

DCCJ 1339/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1339 OF 2007

BETWEEN

Before:  Her Honour Judge Mimmie Chan in Chambers (open to public)

Date of Hearing:  23 March 2009

Date of Delivery of Decision:  23 March 2009

D E C I S I O N

1.This is the Plaintiff’s application for leave to appeal against my Judgment handed down on 12 February 2009, when I dismissed the Plaintiff’s claim for damages for breach of contract, after trial of the action. I found that the parties had not agreed to extend the date for delivery of goods under the contract, and that the Plaintiff was in breach by failing to deliver the contract goods within the time stipulated in the contract.

2.The Plaintiff argues, for the purpose of seeking leave, that at the trial, the Court should have considered the effect of the Defendant’s conduct in causing the delay in shipment, when the Defendant’s delay was not pleaded by the Plaintiff.

3.The Statement of Claim was filed at a time when the Plaintiff was legally represented.  The Statement of Claim was therefore drafted by solicitors then acting for the Plaintiff.  As I have pointed out in the Judgment, and as I have explained in the course of trial to the Plaintiff, who appeared in person, the Statement of Claim only pleads an agreement made by the parties to extend the time for delivery of the goods under the contract.  The Statement of Claim never raised any claim that the agreement to postpone delivery was as a result of any fault or breach of contract on the Defendant’s part.  Because the Defendant’s breach or delay was never pleaded, the Defendant came to court to defend a claim that there was an agreement to postpone delivery of the goods, and whether the delivery was in time. It would not have been fair to permit the Plaintiff at trial to introduce a new case, that the Defendant had by its conduct caused the delay in the production of the goods.

4.The Plaintiff now argues, for the purpose of the appeal, that the court should have looked at the totality of the evidence at trial, and not just the pleadings, and decide whether there was breach or delay on the Defendant’s part which caused the late delivery of the goods.

5.The object of pleadings is to fairly inform the other side and the court of a party’s case, identifying the issues and the true extent of the dispute between the parties.  I need say no more, than to refer to the Judgment of Ma, J the Chief Judge of the High Court, in Wing Hang Bank Ltd. v. Crystal Jet Int’l Ltd [2005] 2 HKC 638, which clearly sets out the importance and purpose of formulating all issues in dispute in pleadings.  Where issues which are not pleaded are sought to be introduced, amendments must be sought unless the consent of the other party had been obtained.  Unpleaded issues cannot be slipped in when evidence is given at trial. 

6.At the trial of this action, no amendments were made to the Statement of Claim to raise delay or breach on the Defendant’s part; the Defendant did not indicate its consent to these issues being raised; and the Court did not permit any evidence to be slipped in, despite attempts to do so made by the Plaintiff.  Counsel for the Plaintiff now seeks, for the purpose of the appeal, to introduce such evidence and to argue that such evidence should have been referred to and considered by the Court when determining the issues.  I fail to see any merits of this ground of appeal.  The fact that a party is unrepresented at trial does not mean that the Court should on its own accord raise an issue not pleaded, nor permit such an issue to be raised (see Court of Appeal decision in 大昌發展集團有限公司 訴 李興盛 HCMP 2535/2007 handed down on 4 June 2008).

7.As for the other grounds of appeal, they seek to challenge findings of fact made by the trial judge who has the advantage of having received the evidence at first hand. On the authority of the guidelines set out in Ting Kwok Keung v. Tam Dick Yuen & Ors FACV 12/2001, as to when a trial judge’s findings of primary facts can be challenged by the Court of Appeal, I am not persuaded that there are any realistic prospects of success of these grounds of appeal.

8.For these reasons, I refuse leave.  The Plaintiff’s summons is dismissed, with costs to the Defendant in any event.

Mr Kevin Fung, instructed by Messrs K Y Lo & Co., for the Plaintiff

Ms Eleanor Cheng, of Messrs Ong & Chung, for the Defendant