Mimi Kar Kee Wong Hunt v. Severn Villa Ltd and Others

HCMP 243/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 243 OF 2011

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AND

HCMP 522/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 522 OF 2011

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Before: Deputy High Court Judge Au-Yeung in Chambers

Date of Hearing: 12 April 2012

Date of Decision: 12 April 2012

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D E C I S I O N

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1.It is trite that in an application of this sort the court needs to weigh a basket of factors before deciding on whether or not to grant the leave sought. In my view, lateness in making this application and solely on the ground of change of legal team are important factors weighing against the grant of leave to amend and to adduce a witness statement. One also has to consider the procedural background and the substance of the amendments and the witness statement to be adduced.

2.Mr Wilson Leung, counsel for the corporate defendants, has very helpfully set out a succinct procedural chronology.  The trial of this matter has been adjourned in the past.  There have been late applications of an interlocutory nature.  The trial has to be re-fixed and the time-table for trial was set in accordance with the need to accommodate the court’s diary and the need to require the learned Deputy Judge Carlson to come back to handle the matter. 25 days for trial have been fixed by the court on the basis of the pleadings and the documents as they then stood.  In my view, there is clear urgency in concluding the present proceedings in the time allotted.

3.Insofar as the amendments are concerned, counsel has summarised them into a few categories.  I adopt the same.

4.It may be true that the plaintiff has pleaded or even adduced witness statement on the factual background, but how a party uses the factual background may affect the course in which she or the other parties takes in the case.

5.The proposed new pleas of lifting a corporate veil and undue influence have not been specifically pleaded in the sense of appearing as a cause of action in the existing state of pleadings. 

6.Having heard the arguments today, I take the view that these new pleas concerning the lifting of corporate veil and undue influence appear to have far greater implications than just inclusion of two more legal terms in the pleadings.  They require factual investigation and legal submission.  As Mr Dawes for the 3^rd defendant submits today, there may also be implications on, eg breach of listing rules and breach of duties to shareholders of a listed company.  In my view, it is not exaggerating for defence counsel to say that they may need to amend their pleadings or to put in a rejoinder and further witness statements to face the new amendments.

7.On the plea of irrevocable licence, Mr Leung, counsel for the plaintiff, suggests that it should be an equitable defence that can appear justifiably in the reply.

8.One must not forget the background of this matter.  Originally the originating summons referred to this plea, but the statement of claim has abandoned it.  It is, in my view, too late now to revive it whether as a cause of action or as a defence.  In any case, denying the plaintiff the right to include this plea will not cause substantial prejudice to the plaintiff.  After all, there has been other pleas along the line of constructive trust in relation to this matter already pleaded.  I see no good reason for granting leave to such substantial amendments applied for at such a late stage.

9.On the witness statement, I am of the view that clearly it is not in response to the defendant’s witness statement from Mr Peter Leung.  I also agree with defence counsel that with this new witness statement, some investigation by the defendants will have to be done as to whether or not the 3^rd defendant had run a listed company as if it was his own.

10.Furthermore, there was no explanation as to why this witness statement could not appear earlier.  It appears to me that the information of this witness statement did not require substantial investigation and there was no assertion, even on affirmation evidence, that this witness could not have provided the information to the plaintiff earlier.

11.In conclusion, I am of the view that weighing all factors, the substantial amendments and the lateness in the application do not justify the court granting leave.  The defendants should not be prejudiced and be detracted from the preparation for trial at this late stage, I therefore dismiss the plaintiff’s summons and costs of the application be to the defendants.

12.There shall be summary assessment of costs on the papers on 30 April 2012.  The defendants do file and serve their costs statement within 7  days, and the plaintiff do file and serve her grounds of objection 7 days thereafter.

Mr Adrian Leung, instructed by K C Ho & Fong, for the plaintiff

Mr Wilson Leung, instructed by Baker & McKenzie, for the 1^st, 2^nd and 4^th defendants

Mr Victor Dawes, instructed by Stevenson Wong & Co, for the 3^rd defendant