Liu Wai Keung v. Liu Wai Man

HCA 1106/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1106 OF 2011

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BETWEEN

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J U D G M E N T

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1.I have a summons before me dated 14 March 2013 for leave to adduce two supplemental witness statements in the form annexed thereto. The trial of this action has been fixed to commence on 16 April 2013. Because of the imminence of the trial I have fixed the hearing of this summons at 4.30 this Friday afternoon to hear the parties.

2.The action is a dispute between a brother and his sister.  The plaintiff brother claims a declaration that a property registered in the name of the defendant sister is held on trust for him, contending that the purchase price and mortgage repayment instalments originated from him.  The property was purchased in the defendant’s name in 1981 with the help of a mortgage loan and the mortgage instalments had been fully paid up by July 1991.

3.According to the plaintiff’s witness statement at paragraphs 31 and 32, he started a company, Daily Signal Limited, with one Mr Sin, in 1990 which purchased a unit in an industrial building in Chai Wan at a price of $2.8 million in September 1992.  The plaintiff said his monthly income was no less than $15,000 at the time.

4.The proposed supplemental statements are those of the defendant herself and of Liu Wai Kong, Victor, the youngest sibling of the family. 

5.I think the application should be refused on the following grounds. 

6.First, what led to the present application was that on 22 January 2013 the defendant filed her third supplemental list of documents.  On 18 February the plaintiff’s solicitors wrote to the defendant’s solicitors saying it was unclear how certain newly disclosed documents, numbered 33 to 51, were relevant to the matters in dispute in the action.  The plaintiff’s solicitors asked the defendant’s solicitors to identify the documents they wished to see included in the trial bundles.

7.On 19 February 2013, the defendant’s solicitors responded stating that items 33 to 51 of the defendant’s third supplemental list of documents were documents intended to be used to rebut the plaintiff’s allegations that he was in good financial shape in 1991 as stated in paragraphs 31, 32 and 34 of his witness statement.  It was there mentioned, for the first time, that the defendant would seek leave to file supplemental witness statements to rebut the matters in those paragraphs of the plaintiff’s witness statement within that week.

8.On 21 February, the plaintiff’s solicitors replied, stating that it remained unclear how items 33 to 51 of the defendant’s third supplemental list of documents, which were documents covering periods beyond 1991, were relevant to the plaintiff’s financial position in 1991. 

9.On 8 March, the defendant’s solicitors wrote to the plaintiff’s solicitors enclosing the two supplemental witness statements and asked for the plaintiff’s consent for them to be filed.  On 12 March, the plaintiff’s solicitors stated that they would not give such consent.  On 14 March, the defendant issued the present summons.

10.The defendant’s solicitors’ affirmation filed in support of the summons said that the supplemental statements stemmed from two letters from the plaintiff’s solicitors dated 18 and 21 February respectively, and in particular that the two supplemental witness statements are, “for the purpose of answering and addressing on the matters raised by the plaintiff’s solicitors in their letters”.  This is misconceived. Supplemental witness statements are not to be made for the purpose of arguing what documents are relevant so as to be included in the trial bundles.

11.Secondly, the contents of the supplemental witness statements seem to me to be of little probative value.  The relevant issue which the supplemental witness statements purport to address is the financial position of the plaintiff in 1991.  The documents which the supplemental witness statements are supposed to explain fall into two groups:

(i)      items 33 to 49 are corporate documents such as annual returns, notices of change of directors, and gazette notices of Daily Signal Limited lodged with the Companies Registry between 1996 and 2009;

(ii)     items 50 to 51 are two charging orders made in 1995 and 1998, respectively, registered against the title to a property at MP Industrial Centre that was acquired by Daily Signal Limited in 1992.

12.Most of the paragraphs of the supplemental witness statements deal with these documents and thus the position after, in fact mostly well after, 1991.  Their relevance to the matters in issue in the action is at best tangential.

13.There is another paragraph in the supplemental statement of the defendant which simply repeats what she has already stated in her first witness statement at paragraph 46.  Parts of the supplemental statements also seek to anticipate the argument of the plaintiff and to deal with it.  In my view, it would be an unwarranted distraction from the real issues to allow the supplemental statements to go in and to require the plaintiff to deal with them at so close a time to trial.

14.Thirdly, the application is, in my view, far too late.  The plaintiff’s witness statement was exchanged on 25 June 2012, almost nine months before today.  There was a deadline under an order of the court dated 4 May 2012 for the parties to take out interlocutory applications by 23 July 2012 which was by consent extended to 6 August 2012.  Had the defendant intended to file supplemental witness statements she should have applied in accordance with that timetable.

15.On 31 October 2012, the defendant filed a listing questionnaire indicating an intention to file two supplemental witness statements.  Late as that indication was, if there was a real intention to file supplemental witness statements, an application should have been made as soon as possible after that indication.  Notwithstanding this, the defendant’s third supplemental list of documents was not filed until 22 January 2013, and even then there was no supplemental witness statement put forward.  At the CMC on 7 November 2012, the defendant made no mention of any intention to file any supplemental witness statement.  The matter was then set down for trial.

16.At the pre-trial review on 23 January 2013 before me, there was still no mention of any intention to file supplemental witness statements.  Even on 6 March 2013, at the hearing of the summons for leave to amend the defence before me, the defendant made no mention to the court that they intended to file any supplemental witness statement.  That was only two days before they sent a letter to the plaintiff’s solicitors enclosing the two supplemental witness statements.  I can only conclude that the defendant was playing her cards very close to her chest.

17.The application is inordinately late.  There has been no proper explanation of the delay.  The excuse put forward, namely, that the supplemental witness statements were to deal with the plaintiff’s solicitors’ letters in February, is, in my view, inept. 

18.For all these reasons the application is refused.

(Discussion re costs)

19.The application will be dismissed with costs and the parties’ costs will be taxed in accordance with the Legal Aid Regulations.

Mr Arthur Shiu, of TH Koo & Associates, for the plaintiff

Ms Carmen Kei, instructed by Fairbairn Catley Low & Kong, for the defendant