Surf Wide Investments Ltd v. Lam Kit Yuk Noel

DCCJ 3878/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3878 OF 2009

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BETWEEN

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

Date of hearing  :  10 March, 2010

Date of delivery of Decision  :  10 March, 2010

DECISION

1.This is the Plaintiff's appeal against my Decision of 3 February 2010, and my refusal to grant the Plaintiff the summary judgment it seeks.

2.The gist of the Plaintiff's appeal is that whereas the Court found that there were triable issues as to whether agreement had been reached between the Plaintiff and the Defendant for exchanging the Property with another apartment in the building, the Plaintiff argues that this was never the Defendant's pleaded case, nor relied upon in either the Defence or the affirmation filed on the Defendant's behalf.

3.Whilst it may be true that the Defence does not contain any pleading with regard to the agreement for exchange, nor, as the Plaintiff argues, the consideration for such alleged agreement, the Plaintiff cannot dispute that the Defendant had all along relied on and referred to the Defendant's letter to the Plaintiff of 13 April 2009. The letter is pleaded in paragraph 24 of the Defence, and referred to in paragraph 23 of the Defendant's affirmation filed in opposition to the application for summary judgment. It was the Plaintiff who sought to rationalize the Defendant's case and defence by referring instead to the Defendant's letter of 30 April 2009, as the Defendant's purported notice of termination.

4.The letter of 13 April 2009 refers, consistently with the Defendant's case, to the exchange of the Property with another apartment in the building.

5.It is true, as I have pointed out in paragraph 23 of the Decision and which led to the grant of conditional leave to defend, that there are inconsistencies in the Defendant's case, as the correspondence including the letter of 13 April 2009 refers only to the Defendant's requests for an exchange of apartments, and to the Defendant's requests being ignored or refused. However, at this summary stage of the proceedings, the Courts endorse the approach of taking a broad view of the evidence and a more lenient view of the pleadings particularly where a defendant is not legally represented. (See, for example, the judgment of Ma, CJHC in The Incorporated Owners of Hong Kong House v. Senfield Limited, CACV 117/2003, 12 November 2003). On the evidence placed before the Court on 21 January 2010, the exhibited correspondence, the Defence, and the affirmation of the Defendant with regard to the meetings held between the Defendant and representatives of the Plaintiff prior to 30 May 2009, should be sufficient to satisfy the Court that the Defendant's assertions with regard to an arguable defence based on an agreement for an exchange are believable. It will then be a matter for trial whether there was a meeting of the minds as a result of the discussions or meetings, and whether the agreement is enforceable, for lack of consideration or uncertainty as the Plaintiff alleges. It may well be that the Plaintiff will be able to demonstrate at trial that the Defence, even after amendment and refinement, has no foundation, but once the Court is satisfied on an order 14 application that triable issues and the preliminary fabric of an arguable defence appear, it is not appropriate for the Court to determine the case on the merits and before cross-examination of the witnesses. The issue at this summary stage is not whether the Defendant's assertions are to be believed; it is whether those assertions are believable (per Godfrey, JA in Ng Shou Chun v. Hung Chun San [1994] 1 HKC 155 at 158).

6.On an appeal against an order granting leave to defend, it is only in exceptional circumstances that the Court of Appeal will disturb the finding that there are triable issues on questions of fact, as in this case, where there are triable issues as to whether an agreement had been made in the course of meetings held by the parties (para.14/4/44 of the Hong Kong Civil Procedure).

7.In the Court of Appeal decision in Worldcap Investment Ltd. v. Bosswell Estates Ltd. CACV 108/1988, 20 October 1988, the late Hunter JA had this to say on appeals against a judge's findings on the facts that there were triable issues :

“Where the issue raised in the court below is the existence of triable issues on the evidence and fact, and the judge reaches a certain conclusion, that … is a matter for the judge's discretion, and is subject to the usual restrictions on an appellate court invited to interfere with the exercise of discretion."

8.Hunter JA relied on and cited the following passage in the judgment of Sir John Donaldson MR in the case of Lloyds Bank Ltd. v. Ellis Fewster [1983] 1 WLR 559:

"This was essentially a matter for the judge's discretion. He thought that there was a triable issue. In a case where the triability of the issue depends upon evidence as opposed to law, I would think it a very surprising situation if the Court of Appeal was prepared to disturb the judge's view. If one judge thinks there is a triable issue, it would be surprising if two or three judges think there is not. It is quite different if you are dealing with a triable issue which arises as a matter of law. When it arises as a matter of evidence and fact, it is most unlikely that the Court of Appeal would interfere with the discretion of the judge below."

9.Under s. 63A of the Ordinance, leave to appeal shall not be granted unless the appeal has a reasonable prospect of success. This has now been clearly established by the authorities after the Civil Justice Reform to mean "more than just an arguable case", but an appeal that has merits, the prospects of which are more than "not fanciful", without having to be "probable" (Ho Yuen Ki Winnie v. Ho Hung Sun Stanley HCMP 1009/2009 24 August 2009, Wynn Resorts (Macau) S.A. v. Mong Henry HCA 192/2009, 10 August 2009).

10.I am not satisfied that the Plaintiff's intended appeal has reasonable prospects of success.

11.Although leave to appeal shall not be granted under s. 63A of the Ordinance unless the appeal has a reasonable prospect of success, the converse is not true. In the case of Ho Yuen Ki Winnie v. Ho Hung Sun Stanley HCA 391/2006, 25 May 2009, Cheung J highlighted the fact that even if the Court takes the view that there is a reasonable prospect of success in the intended appeal, it still retains the discretion as to whether or not to grant leave.

12.Even if I were satisfied that the intended appeal has reasonable prospects of success, I have grave doubts that it would be appropriate to grant leave to appeal in the present case. The Civil Justice Reform places emphases on promoting a sense of proportion, dealing with cases expeditiously, and on the Court taking greater control of the proceedings. The claim in this case is for a sum of $63,000. Since September 2009, further developments have been bogged down by the application for summary judgment, and appeals against the decisions made. I have doubts as to whether the further costs and delay of interlocutory appeals would be justified, as the interests of the parties and due administration of justice may be better served if the parties proceed diligently and speedily to an early trial. With active case management and focus, this case could have been set down, and trial dates could have been obtained by now, for trial to take place within or shortly after the first quarter of this year.

13.For the above reasons, I dismiss the application for leave, with costs to the Defendant.

Mr. Vincent Lung, instructed by Messrs. JSM, for the Plaintiff

The Defendant, in person, represented by Mr. Gil Blum