Fook Lee Holdings Ltd v. Joy Future International Ltd and Another

HCA 321/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 321 OF 2010

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Before : Deputy High Court Judge Au-Yeung in Chambers

Date of Hearing : 31 January 2012

Date of Decision : 31 January 2012

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D E C I S I O N

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1.The material amendments appear in paragraph 18 of the defence. I have no problem with sub-paragraphs 18(a) and (b) which merely purport to plead the relevant clauses of the agreement. The plaintiff, through counsel, considers that the parties can refer to those clauses in their submissions even without these amendments.

2.In so far as sub-paragraphs 18(c) to (h) are concerned, they propose to put forward the defendants’ interpretation of the agreement to define the issue as to when the subject loan would become repayable.  Although Mr Chan, counsel for the defendants, submits that this is to clarify D1 and D2’s stance, I consider this is to be a new line of defence.  It is raised as a result of my query at the last PTR on 21 December 2011.  Whilst the defendants had pleaded that the loan was not repayable on demand, these proposed amendments in sub-paragraphs (c) to (h) purport to put forward a positive case on when the loan will be repayable.  The plea may involve arguments on law and also facts, for example, as to whether or not the project was on-going and dividends have been paid. 

3.Counsel for the plaintiff submits in his submission that it is a point that the defendants can make in its submission, presumably at the trial.  In my view, it is always good practice to put the points in dispute, whether of law or of facts, in the pleadings as early as possible, in particular where these proposed amendments may involve argument on facts as well. 

4.This application for amendment is made at a very late stage – 4 weeks before the trial.  Lateness per se is not a bar to amendment if it does not affect the milestone date, will not cause prejudice to the plaintiff and can be compensated for by costs. 

5.Mr Chan has drawn my attention to the fact that Mr Ho Siu Ki, the witness, has stated in the witness statement the evidence which supports the proposed amendments.  That witness statement was prepared over a year ago in December 2010.  The plaintiff was therefore put on notice of the defendants’ interpretation and should not be taken by surprise.  Although this amendment comes in late, the plaintiff cannot show to me prejudice to them which cannot be compensated for by costs.  The potential prejudice in terms of amendment or the need to file witness statement are not particularised.  Given that there are 4 weeks to work on, I am of the view that the amendment ought to be allowed. 

6.I give leave to the plaintiff to make consequential amendment to its Reply within 7 days.  And if the plaintiff needs to request for further and better particulars, the request should be made also within 7 days.  The plaintiff would also be given leave to file a further witness statement in answer to the new amendments, if so advised, within 7 days of the answer to the request for further and better particulars but, in any event, no later than 7 days before trial. 

(Submission on costs)

7.Order in terms of paragraph 1 of the Summons.  Re-service of the amended defence be dispensed with, subject to service of the statement of truth on the plaintiff.  Costs of and occasioned by the amendment, including costs of this hearing and all consequential steps I have directed be to the plaintiff, to be summarily assessed at the trial.  

Mr Samuel Wong, instructed by Sit, Fung, Kwong & Shum, for the Plaintiff

Mr Kenneth C.L. Chan and Mr Billy N.P. Ma, instructed by Stephen Lo & P.Y. Tse, for the 1^st and 2^nd Defendants