Luen Wo Land Investment Co Ltd v. Yau Wai Nam

DCCJ556/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 556 OF 2005

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Before: Deputy District Judge Herbert Au-Yeung in Court

Date of Hearing: 7 September 2010

Date of Delivery of Decision: 7 September 2010

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Decision

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1I have before me two applications made by the defendant by which he sought to amend his Defence and Counterclaim and to file a supplemental witness statement.

Background

2.To begin with, I would refer to the history of this case as a matter of background.

3.This action was commenced on 3^rd February 2005.

4.The defendant was granted legal aid shortly thereafter. On 20^th May 2005, the solicitors’ firm which was assigned by the Director of Legal Aid to act for the defendant filed a Defence and Counterclaim on his behalf.

5.On 24^th June 2005, the plaintiff, by its solicitors’ firm, requested the defendant to provide further and better particulars of his Defence and Counterclaim (“the FBP”).  The FBP concern certain repair work or partition which had been carried out on the land which is the subject matter of the present case.

6.The Answer to the FBP was eventually filed by the defendant’s solicitors on 1^st September 2005.

7.On 18^th December 2009, the learned Registrar ordered that the parties should file and exchange witness statements within 28 days thereof, which the parties did subsequently.

8.On 29^th December 2009, the learned Registrar directed that the parties should take out all interlocutory applications (if any) within 21 days thereof.  He further directed that a Case Management Conference be held on 4^th February 2010.

9.On 19^th January 2010, the plaintiff took out a summons to amend its Statement of Claim and Reply and Defence to Counterclaim.  Leave was granted at the CMC on 4^th February 2010.  Leave was also granted to the defendant to make consequential amendments to his Defence and Counterclaim.

10.The plaintiff filed its amended pleadings accordingly on 10^th February 2010. 

11.However, the defendant had chosen not to file any Amended Defence and Counterclaim.

12.Upon the parties’ confirmation that they were ready for trial, 4 days have been allotted for the trial of this case which commences today.

The defendant’s applications

13.Mr. Wong, Counsel for the defendant, applied to amend the defendant’s Defence and Counterclaim this morning before the plaintiff’s Opening Submission was made.  He also sought to file a supplemental witness statement of the defendant.

14.He explained that while the defendant has all along been represented by a solicitors’ firm, the defendant’s request to the Legal Aid Department for assignment of counsel has been ignored by the Director of Legal Aid since 2005.  As a result, no counsel has ever been assigned to assist the defendant in the present case until 1^st September 2010 when he was assigned to be the defendant’s trial counsel.  He met the defendant in conference on 2^nd September 2010 for the first time, and it was only with the benefit of counsel’s advice that it was found that the defendant’s Defence and Counterclaim has to be amended and a supplemental witness statement be filed.

15.In a gist, there are 4 substantive proposed amendments in the draft Amended Defence and Counterclaim. 

16.Firstly, the defendant pleaded additionally that Mr. Chan Hon Lam of the plaintiff had orally agreed with him that the plaintiff would let the subject land to the defendant so that the defendant could carry out improvement works there and then rent the land to others as residence, and that they would not discuss on the rent payable for the time being because it was expected that a substantial amount of cost would have to be incurred by the defendant.

17.Secondly, the defendant changed his case in that after its expiry on 28^th February 2001, the first tenancy agreement, instead of being continued to run on a monthly basis as originally pleaded, had been renewed for 2 years by reason of an option to renew.

18.Thirdly, the defendant added a line of defence that he should be allowed to occupy the subject land as a tenant by reason of proprietary estoppel.  I should add that the term “proprietary estoppel” was actually not explicitly pleaded in the draft amendment, but I have been told by Mr. Wong that the defendant was indeed relying on this doctrine in opposing the plaintiff’s claim for possession.

19.Fourthly, the defendant now abandons the entirety of his Counterclaim.  It was said that having taken counsel’s advice, the defendant agreed that the counterclaim was unsustainable.

20.In the supplemental witness statement, the defendant sought to give evidence on various matters.  I do not propose to rehearse what were included.  Suffice for me to say that such matters (apart from the explanation which he gave in relation to the late applications herein) covered events which took place in the period between 1998 and 2004.

Discussion

Delay

21.I do not think there is any dispute that there is a substantial delay on the part of the defendant in making these applications.  In exercising my discretion, I have to take into account whether there is any justifiable reason for such a delay.

22.The reason for the delay was given by Mr. Wong as I have summarised in paragraph 14 above. 

23.With respect, I do not accept that the defendant has any good reason for his delay.

24.As confirmed by Mr. Wong, the defendant has always had the benefit of the services provided by a solicitors’ firm.  This firm was assigned to represent the defendant back in 2005 by the Director of Legal Aid and all along acted as his legal representative in the present case, even up to this trial.  Although no counsel has been assigned to advise the defendant in this case up to last week despite his request, there is nothing to suggest that the said solicitors’ firm lacks the expertise in advising him in the matter. 

25.This is particularly so when we are dealing with the defendant’s witness statement. The facts involved in the present case are not very complicated.  While the relevant events traced back to 1999, the parties’ factual disputes actually relate to only a few events and discussions between them.  As a matter of fact, the defendant’s witness statement which was filed was only a few pages long. It should not be difficult for the defendant and his solicitors to find out that there are some other matters which have to be covered by his witness statement.

26.On 1^st April 2010, the defendant’s solicitors even felt fit to file a Listing Questionnaire in which it was confirmed that the defendant’s pleadings are in order and require no amendment and that the defendant has served all witness statements.  Before such questionnaire was filed, those representing the defendant must have reviewed the case file all over again and been satisfied that what were stated in the questionnaire were accurate. 

27.Further, there cannot be any dispute that while the court documents were all prepared in English, they had been interpreted to the defendant who should therefore have no difficulty in understanding what had been pleaded or drafted on his behalf. Therefore, he should have been able to discover that he had not expressed himself sufficiently clear to his solicitors, if that is the case, soon after his pleadings and witness statement were prepared for him.

Adequacy of the particulars of the Amended Defence and Counterclaim

28.Mr. Li further argued for the plaintiff that the proposed amendments were also lacking in particulars, vague and bad as a matter of law. 

29.It was pointed out that in respect of the first amendment, no particulars in relation to the oral agreement had been given.  For example, it was not clear where and when the oral agreement was allegedly reached.  Neither was it stated what “improvement works” included.

30.In respect of the second amendment, again, it was submitted by Mr. Li that there were inadequate particulars, for example, like the first amendment, it was not stated what “improvement works” included.  Moreover, there was no explanation as to how come the first tenancy agreement was said to have been renewed for 2 years after its expiry.

31.In relation to the third amendment, Mr. Li submitted that the defence of proprietary estoppel was not particularised.

32.I accept that the proposed amendments are lacking in particulars.  Indeed, in respect of some of those amendments, the meaning and the intended effect of which were only made clear upon Mr. Wong’s explanation while he was on this feet. 

33.Mr. Wong said that if necessary, the plaintiff may ask for further and better particulars of the new amendments.  I do not think this is right.  As Chu J. said in her judgment in Hesson Development Limited v. Tang Ki Fan Tso with Tang Tin Kwai as Manager(HCA 5584/1998, unreported, 30^thSeptember 2003), this can hardly be a good answer, especially when this is a late application to amend.

Prejudice

34.Since the CJR, the Court has been more skeptical when faced with applications for leave of this sort at the beginning of the trial especially if the granting of such leave would lead to adjournment of the trial altogether.

35.I have been informed by Mr. Li, counsel for the plaintiff, that if leave is granted to the Defendant, he would have to consider seriously whether he needs to ask for further and better particulars, discovery, etc., and it is most probably that the trial has to be re-fixed to another date.

36.I note that the present case was started in 2005.  The plaintiff is entitled to have this case tried as soon as possible, and it is undesirable that the resolution of the disputes between the parties be further delayed.

Conclusion

37.Having taken into account all matters including submissions from both counsel, I would dismiss the defendant’s applications with costs with certificate for counsel, such costs to be taxed if not agreed.  The defendant’s own costs shall be taxed according to Legal Aid Regulations.

Mr.  C. Y. Li, instructed by Messrs Iu, Lai & Li, for the plaintiff

Mr. Philip Wong, instructed by Messrs Raymond Chan, Kenneth Yuen & Co., for the defendant