Chun Foo Keung v. Chun Lap Keung

DCCJ 309/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 309 OF 2012

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Before: Deputy District Judge BY Leung, Nancy in Chambers

Date of Hearing : 13^th July 2012

Date of Decision: 2^nd August 2012

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Decision

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1.The plaintiff issued a writ of summons (with a statement of claim) for repayment of a loan. The defendant filed and served his defence. Both the plaintiff and the defendant have been acting in person all along. By way of inter-parties summons, the plaintiff made an application for summary judgment and filed an affirmation of himself in support of his application. After hearing the submissions of both parties on 30 March 2012, the Master dismissed the plaintiff’s summons with no order as to costs. The plaintiff appealed against the Master’s decision.

2.As requested by both parties, the appealproceeding was conducted in both Cantonese and English.  After the hearing, I reserved my decision.  After considering the pleadings and the relevant evidence, and hearing the submissions of both parties, I decide to dismiss the appeal for reasons set out below.

3.In essence, the plaintiff claims against the defendant for:-

(a) repayment of a sum of money allegedly provided by the plaintiff to the defendant to pay for the defendant’s tuition fees and daily expenses when he was studying in Taiwan for his medical degree; and

(b)  repayment of a sum of money which allegedly the plaintiff had paid to purchase two microscopes for the defendant during his studies.

4.In total, the plaintiff claims against the defendant for HK$183,600 plus interest.

5.I noted that, subsequent to the hearing before the Master, further affirmations have been filed by both parties.  In this regard, I have drawn the parties’ attention to Order 58 Rule 1(5) of the Hong Kong Civil Procedure 2012 which states that “No further evidence (other than evidence as to matters which have occurred after the date on which the judgment, order or decision was given or made) may be received on the hearing of an appeal under this rule except on special grounds.”.

6.Regarding the affirmation(s) of the defendant which was filed subsequent to the hearing before the Master, the defendant was unable to provide any special grounds (in fact, any ground) to justify the late admission of such further evidence.  As such, in coming to my decision, I have not taken such affirmation and its exhibits into account.

7.Regarding the plaintiff’s further evidence which was submitted subsequent to the hearing before the Master, the plaintiff submitted in court that the reason why he could not have submitted such evidence earlier was that the information contained in those further affirmation(s) was only provided to him after he had a discussion with his sister subsequent to the hearing before the Master.  Even assuming I believe the explanation given by the plaintiff, as there was no evidence to show why such evidence could not have been obtained with reasonable diligence for use at the hearing before the Master, I do not consider the explanation given is sufficient to constitute a special ground to justify the admission of such further evidence.  As such, I have disregarded such further evidence.

8.However, even if I am wrong in disallowing such further evidence, I shall add that such further evidence would not have changed my decision to dismiss this appeal as such further evidence cannot in any way dispel the triable issues raised in the defence as mentioned in paragraph 9 below.

9.After considering the pleadings and the relevant evidence, and hearing the submissions of both parties, I am not satisfied that summary judgment can be given.  The plaintiff has not yet discharged his burden to prove his claim and there are also clearly quite a few triable issues, including but not limited to:-

(a) whether the money used for payment of tuition fees and daily expenses of the defendant during his studies in Taiwan came from the plaintiff or somebody else (eg the second brother and/or the second sister of the defendant); and

(b)  whether the plaintiff did purchase two microscopes for the defendant.

10.As such, this appeal must be dismissed and I make an order nisi that there be no order as to costs.  Unless an application is made within 14 days to vary such costs order, it shall become absolute.

The plaintiff appeared in person

The defendant appeared in person