Wong Kwan Yee v. The Incorported Owners of Diamond Mansion (Nos. 466-468, Lockhart Road) and Another
Read the full judgment text of HCA 2576/2007 on BabelCite. This High Court CFI judgment was delivered on 8 December 2009.
1. This “Reasons for Decision” concerns the plaintiff’s application to strike out the highlighted part of para. 10A, re-re-re-re-amended defence. The relevant part reads:-
Cites 2 cases
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HCA 2576/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 2576 OF 2007 ____________ BETWEEN
____________ Before: Hon Chung J in Chambers Date of Hearing: 8 December 2009 Date of Decision: 8 December 2009 Date of Handing Down Reasons for Decision: 14 December 2009 ________________________ REASONS FOR DECISION ________________________ Introduction 1.This “Reasons for Decision” concerns the plaintiff’s application to strike out the highlighted part of para. 10A, re-re-re-re-amended defence. The relevant part reads:-
The highlighted part will be called “the subject averment” below. 2.At the end of the hearing on 8 December 2009, the application was dismissed with costs. Below are the reasons. 3.This action can be summarized as follows. The plaintiff is the owner of the suit property, a shop unit and a mezzanine unit located in a building with a residential portion on the upper floors and a commercial portion underneath it. 4.This action, commenced in 2007, focuses on an opening on the one side of which is the plaintiff’s mezzanine unit and on the other is the common corridor. 5.The main dispute in this action is whether the said opening was made at the time when the building was constructed (the plaintiff’s case), or only made subsequently (the defendants’ case). 6.The plaintiff put forth 4 grounds in support of this application:-
Adequacy of Supporting Evidence 7.The evidence relied upon by the defence in support of the subject averment is contained in para. 7 of the supplemental witness statement of a Mr Lai, whose family members live in a unit in the building. Mr Lai said:-
The plaintiff occupied the suit property since 1966 as a tenant. She purchased it in 1978 (while still in occupation) and let it out in 1980 until today. 8.The plaintiff fairly accepted at the hearing the above witness statement should be treated as truthful and reliable for the purpose of this application. 9.The plaintiff is correct to contend it is not for a witness to perform the fact-finding function for the court. However, from the primary facts given by Mr Lai, it is difficult to see what other conclusion can be drawn than the one stated in his supplemental witness statement. 10.For this reason, I do not accept the plaintiff’s contention. Relevance 11.The plaintiff argued that the defence itself accepts the subject averment is irrelevant. 12.The defence written submissions read:-
13.The defence is only saying this: while the subject averment is relevant, it is irrelevant to their case precisely who made the said opening, or precisely when it was made. But it is obvious the defence wishes to establish that the said opening was made during the period of the plaintiff’s occupancy (directly or through her tenant). This is for the purpose of showing that the said opening could not have been made in the way the plaintiff claims it was made. 14.The essence of plaintiff’s case is based in gist on two matters:-
15.In a sense, it is true the defence needs only deny the above case and put the plaintiff to proof of her case. But the law does not forbid the defence, in an appropriate case, to also put forth a positive case in response. In fact, such course is not uncommon in civil litigation. In this action, it is appropriate for the defence to call its own witness in an attempt to refute the plaintiff’s testimony. 16.Thus, I disagree with the plaintiff’s argument. Embarrassing Averment 17.The meaning of para. 10A (including the subject averment) should be clear:-
18.I therefore do not agree the subject averment is embarrassing. Further and Better Particulars 19.The particulars in question have been summarized in para. 12 above. 20.Irrespective of whether the plaintiff is correct that the particulars given are inadequate, it is trite law mere lack of particulars is not a good reason for striking out a pleading: Hong Kong Civil Procedure 2010, Vol. 1, para. 18/19/9 (p. 398) citing Kemsley v. Foot [1952] AC 345 and IO of Kwun Tong Industrial Centre v. Fels Construction Techniques Ltd., HCCT 101/2002 (14 March 2002). 21.Hence, this is not a valid reason for striking out the subject averment.
Mr Benjamin Chain, instructed by Messrs P H Chin & Company, for the Plaintiff Mr Kelvin Leung, instructed by Messrs Pansy Leung Tang & Chua, for the 1st Defendant |
Cases cited in this judgment
Further hearings and rulings under HCA 2576/2007