Kan Wai Chung and Others v. Hau Wun Fai and Others

HCA 811/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 811 OF 2010

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BETWEEN

HCA 868/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 868 OF 2013

________________________

BETWEEN

(Consolidated by the Order of Master J. Wong dated 18 November 2013 with HCA 811/2010 be the leading action)

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D E C I S I O N

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A.  The Application

1.Before the two actions of HCA811/ 2010 and HCA 868/2013 were consolidated, the Plaintiffs applied by summons dated 7 June 2013 in action HCA811/2010 for further and better particulars of a certain part of the Defence. The matters discussed in this decision notwithstanding the consolidation are only concerned with the action HCA811/2010.

2.The Defendants, in response to the summons, served an Answer dated 15 July 2013. In it, apart from providing some documents (to be referred to in §67 below), the Defendants virtually refused to answer most of the requests. Hence, the hearing for argument in which the Plaintiffs were represented by counsel, Mr Fong, and the Defendants by counsel Mr Chong and Miss Wong.

B.  Background

3.Before discussing the substantive merits of the requests, a brief mention should be made of the history of events.

4.Prior to the summons, the Defendants had applied to strike out the Plaintiffs’ claim, but failed before the Master.  This led to the appeal heard by Poon J, who allowed the appeal against the Master’s order, struck out the claim and set aside the default judgment (that had been entered against the Defendants). Dissatisfied with Poon J’s order, the Plaintiffs appealed to the Court of Appeal under CACV 43/2012. The Court of Appeal by a unanimous judgment handed down on 7 February 2013 (“CACV Judgment”) allowed the Plaintiffs’ appeal.  Barma JA, in the leading judgment,  discussed in great detail the background to the Plaintiffs’ claim, and I will respectfully set out the relevant part of his judgment relating to the background as follows:

“The background to the Plaintiffs’ claim

5. In these proceedings, the Plaintiffs, all of whom are male indigenous villagers of a village in the New Territories, claim damages against the Defendants, who are partners in a firm of solicitors, for conspiracy and malicious falsehood. The factual background to the claim is as follows:-

(1) The Plaintiffs were respectively the registered owners of Sections C, J, H, E and L of Lot 482 in DD 94, in Hang Tau, New Territories. The 5^th Plaintiff was also the registered owner of section A of Lot 485 in DD 94. As male indigenous villagers, they were each entitled to build a house on their land, in accordance with the Government’s Small House Policy in relation to New Territories land.

(2) In about 1993, three companies – Wang Kee and Company Limited (“Wang Kee”), Keeprofit Limited (“Keeprofit”) and Barbican Capital Investment Limited (“Barbican”) entered upon a joint venture project to develop small village houses in Hang Tau…

(3) During 1994, Sino Favour entered into agreements (“the Development Agreements”) with 21 male indigenous villagers, including the Plaintiffs, to acquire their rights to build small houses on Lots 482 and 485. Each of the agreements provided for Sino Favour to be responsible for construction works, bearing all the costs of construction, while the villagers would be responsible for obtaining necessary government approvals for the construction of a small three-storey house on the land of which they were respectively the registered owners… the villagers agreed to hold their respective pieces of land as bare trustees for Sino Favour.

(4) ……

(5) … in 2003, Sino Favour brought in a new joint venture partner, Shiny Develop Limited (“Shiny Develop”), for the first phase of the project, under which 10 houses were to be built.

(6) The 10 houses were completed in about January 2005… and between April and June 2005, Sino Favour and Shiny Develop entered into agreements for the sale and purchase of the houses that had been built with third party purchasers. The Defendants acted as the solicitors for Sino Favour and Shiny Develop in relation to these sales.

(7) The Plaintiffs say that they were unaware of the sales of the houses, and that the houses were sold without their knowledge and consent. They say that in the case of the 1^st and 3^rd Plaintiffs, the sale documentation by which houses were sold by these Plaintiffs was executed by purported attorneys on their behalf, in whose favour they had never in fact executed powers of attorney. In the case of the 2^nd, 4^th and 5^th Plaintiffs, it is said that they never authorised the Defendants to act as their solicitors in respect of such sales, and never signed the sale and purchase agreements that purport to bear their signatures, which must therefore have been forgeries (or involved a misuse of their signatures on other, originally blank, documents). Further, all the Plaintiffs say that the attestation and interpretation clauses in the various sale and purchase agreements to which they were apparently parties were untrue and therefore amounted to forgeries, as the 2^nd and 3^rd Defendants never attested the Plaintiff’s signatures, and none of the agreements were interpreted to the Plaintiffs. The Plaintiffs also claim never to have received any of the consideration payable under the sale and purchase agreements.

(8)     In these circumstances, the Plaintiffs claim that the Defendants were guilty of conspiracy to injure them by selling their property without their knowledge and consent, and of malicious falsehood by falsely representing to the purchasers that the Plaintiffs had agreed to the sale and purchase of their houses, and to have suffered damage in respect of the value of their property of which they have thereby been deprived.”

C.  Earlier proceedings

5.The factual background as taken from the Barma JA’s judgment only encapsulates the Plaintiffs’ claim.  In order to properly understand the issues of this case (to be discussed below), it is necessary to consider the gist of the Defendants’ defence as some of its pleas are the subject matter of the requests.

6.In their Defence, the Defendants alluded to a host of previous events and court orders in connection with the subject land lots of this claim.  Again, Barma JA’s judgment gave a succinct description of it. For the purpose of avoiding repetition,  I will respectfully extract the relevant part of his judgment under the heading of “the history of the earlier proceedings” as follows:

“The history of the earlier proceedings

9. … These can, for present purposes, be summarised as follows: -

(1) In about mid-2005, the Developers having entered into contracts for the sale and purchase of the small houses developed in the first phase of the project, they discovered before such contracts were completed that, notwithstanding the declarations of trust that had been made by the Plaintiffs, the Plaintiffs had purportedly entered into provisional sale agreements in respect of the same houses under which they were to sell the houses to Barbican at what was alleged to be a gross undervalue, and had given Barbican irrevocable powers of attorney in respect of the houses, without the knowledge or consent of the Developers, and had registered the provisional sale and purchase agreements against the houses, thereby creating an impediment to the completion of the Developers’ sales to their own purchasers (all of whom were unrelated bona fide third parties).

(2) As a result the Developers brought HCA 1517-1521/2005 against the Plaintiffs and Barbican (five separate actions being brought against each of the 1^st to 5^th Plaintiffs respectively, in all of which Barbican was joined as a defendant).

(3) …

(4) On 12 August 2005, the return day for the injunctions granted by Hartmann J, the Developers and Barbican appeared before Deputy Judge Saunders. …, the Developers sought a continuation of the injunctions granted ex parte by Hartmann J...

(5) …Deputy Judge Saunders was persuaded to make orders for sale permitting the Developers to sell or complete the sale of the houses “on the basis” that “the [Plaintiffs] are just the bare trustees of the [Developers] holding the legal title [to the houses] on trust for the [Developers]”. There was, however, also an undertaking on the part of the Developers to hold a sum of HK$2,500,000 (representing the proceeds of sale) through their solicitors (the Defendants) as stakeholders…..

(12) The earlier proceedings were eventually settled.”

7.The Developers referred in §9(1) of the CACV Judgment set out above were Sino Favour and Shiny Develop.

8.For convenience, I will, unless otherwise stated, adopt the same abbreviations as set out in the CACV Judgment extracted above.

D. Pleadings and issues

D.1  Pleadings

9.According to the Statement of Claim (“SOC”), the Plaintiffs’ interests in the subject land lots were based on them being the registered owners of the subject land lots.  Wrong was allegedly committed against the Plaintiffs when the Developers and the Defendants, between April and June 2005, by 10 respective sale and purchase agreements (“2005 SPAs”) and the purported power of attorneys allegedly executed by the respective 1^st and 3rd Plaintiffs (“Impugned PA”), caused the disposal of the sale of the houses erected on the subject land lots without their prior knowledge and consent.

10.In the Defence, heavy reliance has been placed on the previous proceedings set out in Section C above, especially the order made by Deputy Judge Saunders on 12 August 2005 (“Saunders Order”) described in §9(5) of the CACV Judgment.  The gist of the Defendants’ defence is:

(1) By virtue of the terms of the Development Agreements, the Plaintiffs were only bare trustees without any beneficial interest in the said land lots and in the houses built and completed by the Developers on the said land lots.

(2) The Plaintiffs had entered into the 2005 SPAs in the capacity of the trustees of Sino Favour. By the Saunders Order, the Developers had been authorized to sell and dispose of the houses, in respective of which transactions the Defendants only acted for the Developers (but not the Plaintiffs).

11.Before discussing the Reply, it is perhaps also convenient to identify at this stage another set of documents the Defendants alleged (in §15 of the Defence) the Plaintiffs had allegedly executed pursuant to an express term of the Development Agreements and under the order and direction of Sino Favour.  These documents were allegedly executed between 1995 and 1996, and they were (a) power of attorneys; (b) formal sale and purchase agreements and (c) assignments (collectively “95/6 Documents”).  These 95/6 Documents will be discussed in greater detail in Section F.2 that deals with the requests arising from this plea.

12.In the Reply, the Plaintiffs averred that the Development Agreements were illegal and unenforceable (§§5-10 of the Reply).  It was further denied that the Plaintiffs had signed any of the 95/6 Documents.

D.2  Issues

13.In this application, Mr Fong, in his Reply Submission, identifies three issues[1] said to be relevant to this action.  They are,

(a) Whether the Plaintiffs are the legal and beneficial owners of the subject land lots;

(b) Whether the Development Agreements were unlawful and unenforceable against the Plaintiffs; and

(c) Whether the Defendants have conspired with the Developers and/or other persons to sell and dispose of the Plaintiffs’ properties by using false/forged documents.

14.Mr Chong, on the hand, contends[2] that there are only two relevant issues in this action:

(a) Whether the Plaintiffs were bare trustees of the Developers without beneficial interests in the said land lots.

(b) If the Plaintiffs were not bare trustees and had interests in the said land lots, whether the 2005 SPAs and the Impugned PA have caused loss and damage to the Plaintiffs.

15.Despite the slight difference in the number of issues the counsel have identified, I think they are substantially the same, and boil down to two. The first issue is, undisputedly, the question of beneficial interests as Barma JA had already observed in the CACV Judgment (at §6) that the Plaintiffs in order to succeed on this claim,  “must establish that they had a beneficial interest in the houses that were sold.  If they did not, they could suffer no loss or damage… [the Plaintiffs] assert that they did, because their declaration of trust in favour of Sino Favour under the Development Agreement is invalid and unenforceable by reason of illegality, as to uphold it would involve a misrepresentation (as to their being beneficial owners of the land on which their respective houses were built) having been made to the Government in order to obtain permission to build such houses”.

16.The question of beneficial interest would undoubtedly involve a determination of the legality of the Development Agreements.

17.It should be noted that in Barma JA’s judgment, the beneficial interests that he had identified referred to those of the houses that were sold, not to the land lots.  This must be correct as the Plaintiffs’ claim for the alleged loss and damage concerns the houses that had been built on the subject land lots but were sold in 2005.  The beneficial interest that is being discussed in this decision should be referable to the beneficial interest in the houses though it is observed that counsel do not seem to have made such a distinction in their written submissions.

18.If the Plaintiffs fail on the beneficial interest issue, they will also fail in their claim.

19.If, beneficial interests could be established, the next issue that needs to be determined will be whether the Defendants had committed any wrongdoing as the Plaintiffs alleged in the SOC, that is, whether they had conspired with the Developers and other persons to dispose of the houses without their consent, and whether they had forged the 2005 Agreements and the Impugned PA and whether they had falsely made representations as to these documents.

20.The second issue therefore is to determine if the Defendants had committed any wrongful acts as alleged.

21.In summary, the first issue on beneficial interest covers issues (a) and (b) Mr Fong’s identified and Mr Chong’s issue (a); while the second issue on the alleged wrongful acts will be Mr Fong’s issue (c) and Mr Chong’s issue (b).

22.Having identified the relevant issues, I next consider the applicable principles, which I do not think are in dispute.

E.  Applicable Principles

23.Broadly speaking, the principles to be applied in this application are those governing Order 18 rule 12, Rules of the High Court (“RHC”), which rule, since the amendment made under the Civil Justice Reform, now requires an applicant to show that the particulars sought are “necessary either for disposing fairly of the cause or matter or for saving costs” (Order 18 rule 12(3B), RHC).  Relevance, as accepted by counsel, is not the only requirement.

24.The question of rrelevance is not confined to a consideration of the averments made in pleadings.  The court can disregard any immaterial or irrelevant averments in the pleadings.  Thus, discovery may be refused if it can be shown that the documents, though being averred to in a pleading, are irrelevant to matters that need to be resolved at trial (Allington Investments Corp v First Pacific Bancshares Holdings Ltd [1995] 2 HKC 139, followed by Re Cosmo-Technology Ltd [2009] 2 HKLRD 151).

25.A decision of Deputy Queeny Au-Yeung (as she then was) in Well Joint Trading Ltd v Chiu Chung Chiu, unrep. HCA 1768/2011, 9 July 2012 was also cited by Mr Fong. In this decision, the then learned Deputy Judge after quoting a passage of the judgment of Mr Justice Ma CJHC (as he then was) in Wing Hang Bank Ltd v Crystal Jet International Ltd & Others [2005] 2 HKLRD 795 at 799 A-F, recapped (at §§14-16) the well-established principles on the function of particulars.

26.The principles on the function of particulars are well-established and trite, and I do not propose to repeat them but will bear them in mind in this application.

27.Before leaving this discussion, I should also mention (for completeness) the cases Mr Chong referred to in his written submission concerning the requirement that is applicable to this claim – a requirement of pleading special damage. In this claim as the Plaintiffs’ claim has included a claim under malicious falsehood (citing Ratcliffe v Evans [1892] 2 QB 524 and British Railway Traffic and Electric Co v The C.R.C Co and the London Country Council [1922] 2 KB 260) and a tort of conspiracy (citing Crofter Hand Woven Harris Tweed Co v Veitch [1942] AC435), it is therefore submitted that the requirement would apply.

28.I do not think much turns on these authorities as I do not think Mr Chong is suggesting that he is relying on a pleading defect in the Defendants’ refusal to provide particulars to be further discussed in Section F below.

29.I now turn to the specific requests.

F.  Requests

F.1  Paragraph 8 of the Defence (Request 1)

30.At the hearing of the summons, Mr Fong indicated to the court that the Plaintiffs no longer pursued this request.

F.2  Paragraph 15 of the Defence (Request 2)

31.It is pleaded that the Plaintiffs, pursuant to an express term of the Development Agreements, and upon the orders and direction of Sino Favour, were contractually obliged to do, signed and executed the 95/6 Documents to enable Sino Favour to sell or otherwise dispose of their legal title in the land lots.

32.In their Answer to the Request, the Defendants answered that the house (with the land lot number being stated to be 882) referred in §4(a) of the SOC did not concern them.

33.So far as the sales referred to in §4(e) to (g) of the SOC are concerned, the Defendants answered that the sale in relation to the houses of the respective land lots (that is, those of the 3^rd and the 4^th Plaintiffs) described in the said sub-paragraphs had been cancelled.  It is therefore contended that no loss or damage could have been caused to the 3^rd and 4^th Plaintiffs, and the 95/6 Documents are wholly unnecessary.

34.As for the requests for the identity of the person acting for Sino Favour; the details of the orders and directions having been allegedly given by Sino Favour; the exact dates of and the location of the signing and execution of, the Plaintiffs’ legal representation in respect of the alleged execution of, the particulars of attestation of, the custody of and the present state of the 95/6 Documents, were contended by the Defendants as being irrelevant to any issues raised in the claim or defence.

35.Continuing with the pursuit, Mr Fong submitted that the Defendants, having alluded to the 95/6 Documents, were positively pleading a case that they were the solicitors for Sino Favour in the sale and disposal of the subject land lots (§16 of the Defence), and given the fact that the 95/6 Documents were allegedly for the sale and disposal of the subject land lots,  the  particulars sought would give information on whether the Defendants had been involved in the preparing and/or arranging of the 95/6 Documents and  whether they had been used to proceed with the sale of the houses sold by the Developers in 2005.

36.Mr Chong raised a number of contentions.  The gist of his contentions is as follows:

(1) It is the Plaintiffs’ case that they have allegedly suffered loss and damage as a result of the sale of their respective land lots under the 2005 SPAs.  Whether the plaintiffs have signed other documents which did not dispose of the subject land lots were irrelevant.  It is not necessary for the Defendants to identify the 95/6 Documents.

(2) By the doctrine of merger, a sale and purchase agreement is to be merged in the final assignment.  By the operation of this doctrine, any earlier sale and purchase agreements that might have been signed would have been merged with the actual assignment that finally disposed of the interest in the houses.

(3) Even if the 95/6 Documents were relevant for the disposal of Issue (b) that he has identified, the particulars sought are irrelevant for the following reasons:

(a) The matter pleaded in §15 of the Defence is whether the Plaintiffs were bound by the terms of the Development Agreements to sign the 95/6 Documents.  The circumstances and the details of the execution of these documents are irrelevant.

(b) The request is for evidence as the Defendants would be required to lead evidence in their witness statements on the circumstances surrounding the execution and signing of the 95/6 Documents.  The Plaintiffs will not be surprised at trial if the requested particulars are not answered as the Plaintiffs will know from the witness statements what evidence they have to answer (Sunny Tadjudin v Bank of America National Association, HCMP 337/2012, unrep. 29 March 2012 at §§30-34). As the Plaintiffs denied having signed any of the 95/6 Documents  (§12 of the Reply), Mr Chong therefore contended that the detailed particulars requested by the Plaintiffs are not relevant for the resolution of the issue as to whether the 2005 SPAs and the Impugned PA were executed by them.

(c) On the request on attestation, Mr Chong further contended that if the 95/6 Documents were proved to have been executed by the Plaintiffs, they would have bound them whether they had or had not signed in the presence of the Defendants or any of them.

(d) Lastly, Mr Chong contended that whether the Plaintiffs were legally represented, is also irrelevant since there is no plea of non est factum.

37.The submission by Mr Fong that just because the Defendants have alluded to the 95/6 Documents, they shall be obliged to provide particulars of the averment is in fact contrary to the authority discussed above (See Allington, supra).

38.Mr Fong’s indication of his willingness to abandon these requests if the Defendants were able to confirm that the 95/6 Documents do not form any part of the 2005 SPAs suggests that he is in fact going after evidence.  If that were indeed the main purpose in seeking these particulars, it could simply be done by comparing the 95/6 Documents (that the Plaintiffs could obtain from the Defendants) with the 2005 SPAs and the Impugned PA.

39.As the history of the events (set out in Sections B and C above) has shown, the houses on the subject land lots had been disposed of in 2005 under the Saunders Order.  The Defendants have provided copies of the 2005 SPAs to the Plaintiffs that show that the Plaintiffs (or their purported attorneys in the case of the 1^st and the 3^rd Plaintiffs) were the vendors.  After a protracted history of proceedings between the Plaintiffs and the Developers, the Plaintiffs in this claim are alleging that the alleged executions appeared in the 2005 SPAs and the Impugned PA are not what they represent themselves to be – that the signatures were not Plaintiffs’ signatures, the attestation had not taken place as stated in the documents, and that no power of attorney had ever been executed by any of the Plaintiffs.

40.I am not persuaded by Mr Fong’s stated purpose for these requests as being relevant- that is to confirm whether the 95/6 Documents form any part of the 2005 SPAs or the Impugned PA.  In the six[3] of the 2005 SPAs that relate to the sale of the houses registered in the name of the 2^nd and the 5^th Plaintiffs, they show the purported signatures of the 2^nd and the 5^th Plaintiffs, the purported attestations by one of the Defendants and the purported interpretation by the legal executive of the Defendants.  No reference can be found having been made to any of previous documents, let alone the 95/6 Documents.

41.Even assuming the 95/6 Documents might have formed the 2005 SPAs and Impugned PA, I am not persuaded that they are relevant to the issues in this case for the reason, as Mr Chong rightly pointed out, that the allegations of the tortuous acts against the Defendants are not concerned with any documents that disposed of the houses in 2005 - the 2005 SPAs and the Impugned PA.

42.I agree with Mr Chong that §15 was pleaded to particularize in greater detail the Plaintiffs’ obligations under the Development Agreements, one of which was to execute and sign the 95/6 Documents under the direction and instructions of Sino Favour.  The particulars sought, in my considered view, would not help resolve the beneficial interest issue, or the wrongful acts issue.

43.It should also be correct in my view that any earlier documents, if so required in the disposal of the houses, would have been required to be included in or annexed to each of the 2005 SPAs for the final disposal and sale of the properties as one single integral part of the formal conveyance contract.  This is only as a matter of common sense and one does not need to apply the doctrine of merger.  I think Mr Fong is correct in saying that this doctrine only relates to conveyancing matters as the doctrine is primarily concerned with the principle that says that the final contract is that contained in the deed of conveyance and the executory contract cannot be used for the purpose of changing what is contained in the deed[4]. The question in this request is definitely not about whether a term of an earlier contract should be merged into a final conveyance deed.

44.Having come to this view, I do not need to discuss Mr Chong’s other points, but wish to make one observation about the cancellation of the sales as an objection raised in this application, I think evidence should have been filed in support. I should also mention about the objection to question (a) on the ground that a wrong land lot had been identified.  It is plain in my view on any reasonable reading of §4(a) of the SOC that the reference to Lot No 882 there would have been obviously a clear typographical error for the Plaintiffs have already in the preceding part of the SOC at §1(a) of the SOC correctly described the land Lot No as being Lot No 482.  This objection is bad, and will not be accepted.

F.3  Paragraph 16 of the defence (Request 3)

45.The Defendants plead,

“At all material times, the 1^st to 4 Defendants as solicitors for the Developer and the Co-Developer [that is the Developers] for the sale and disposal of the said Land Lots.” [the definition in bracket is added]

46.The Plaintiffs wish to know:

(a) Since when the Defendants had acted for the Developers for the sale and disposal of the said land lots;

(b) The identity of the legal representatives of the Plaintiffs for the sale and disposal of the said land lots prior to the Saunders Order; and

(c) Whether the Plaintiffs had been legally represented prior to the Saunders Order when the said land lots were sold and whether the Defendants had advised the Plaintiffs to seek independent legal advice if it is averred that the Plaintiffs were not legally represented.

47.The Defendants declined to provide any particulars to these requests on the ground of irrelevance.

48.The justification for these questions, according to Mr Fong, arises from the apparent representation in the 2005 SPAs that the Defendants were the Plaintiffs’ solicitors in the sale of the houses, which representation is in stark contrast to the Defendants’ pleaded case (at §27(b) of the Defence) that they had never been retained by the Plaintiffs.  It is therefore submitted that these requests would be relevant for they would enable the Plaintiffs to know the Defendants’ case in respect of the 2005 SPAs.

49.Mr Chong contends that question (a) is irrelevant because the answer will not help pin down the Defendants’ case. As for questions (b) and (c), Mr Chong argues that since it is undisputed that the Defendants were solicitors for the Developers at the hearing before Deputy High Court Judge Saunders, the requests are wholly irrelevant.

50.One of the most fundamental matters concerning the disposal of the houses in 2005 under the Saunders Order is that by the Saunders Order, the Developers had been able to transfer the title of the houses to the third parties on the basis of a declaration contained in the Saunders Order that the Plaintiffs were trustees.  There is no dispute that the Defendants acted for the Developers in the disposal of the houses in accordance with the Saunders Orders.  I think this is the point Mr Chong was trying to make when he mentioned the Defendants as having been the Developers’ solicitors in the hearing before Deputy Judge Saunders.

51.Mr Fong is certainly right in saying that the 2005 SPAs on their face indeed suggest that - as evidenced by, according to my reading of these documents, some of the terms -  the Defendants were acting as the Plaintiffs’ solicitors in the sale of the houses.  For example, if one were to read clause 3 (that directs the purchase price to be paid to the Vendor’s solicitors as stakeholders) and Schedule 4 (that provides that the purchase price should be made to the Defendants) together, there is little doubt that the words in these provisions show that the Defendants were indeed acting for the Plaintiffs.  I am in agreement with Mr Fong’s observation that these terms are in contradiction to the Defendants’ pleaded case of having acted for the Developers alone.

52.This contradiction should therefore be clarified. But, do the Plaintiffs’ requests address this ambiguity? I think not.

53.Request (a) on when the Defendants had acted for the Developers will not tell the Plaintiffs why the pleaded case is different to the terms of the 2005 SPAs.  Question (b) on who the legal representatives of the Plaintiffs before the disposal of the houses in 2005 were also, with respect, bears no relevance to the apparent difference.  Lastly question (c) on whether the Plaintiffs were legally represented when the houses were sold prior to the Saunders Order is by no means clear and it further fails to illicit information about  the apparent contradiction identified in §51 above.

54.I cannot therefore be satisfied that these requests will be able to illicit information that is relevant to the matters or questions in dispute.

F.4  Paragraph 26 (b) of the defence (Request 4)

55.Paragraph 26(b) pleads:

“The 1^st to 5^th Plaintiffs, by themselves and/or through their lawful attorneys, entered into sale and purchase agreements of the said Land Lots with third parties as therein identified, in their capacity as the trustees of the Developer [i.e. Sino Favour].”

56.The Plaintiffs asked 6 questions.  The first three questions of questions (a) to (c) are about the date, the place of the execution of the said agreements and on whether the Plaintiffs and the/their lawful attorneys were legally represented.

57.Questions (d) to (f) are on whether there were any provisional sale and purchase agreements with the third parties.

58.The Defendants refused to provide any of the particulars on the ground of irrelevancy.

59.These particulars if provided would, Mr Fong submitted, enable the Plaintiffs to know the Defendants’ case surrounding the circumstances under which the 2005 SPAs were entered.  Given the denial by the Plaintiffs in the SOC of having executed the 2005 SPAs and the Defendants having attested to their signatures, Mr Fong therefore submitted that these particulars must be provided.

60.Mr Chong contends that as the sale and purchase agreements between the Plaintiffs and the third parties were subsequently cancelled due to the effect of the Saunders Order, these requests are not relevant to the subject claim.  In any event, it is contended that no issue has been taken in relation to the conveyances between the Plaintiffs and the third parties.

61.In order to properly understand the arguments, it is necessary to examine the context in which paragraph 26 of the Defence is pleaded.  Paragraph 26 pleads to the averments in §4 of the SOC (that avers that the Defendants together with the Developers sold the houses under the various 2005 SPAs without the Plaintiffs’ prior knowledge or consent).

62.When §26(b) is considered against the overall context of this plea in §26, I would respectfully disagree with Mr Chong’s contention that this plea is to serve as background information.  His argument about the cancellation as set out in §60 above also seems to be, with respect, a misreading of paragraph 26(b) of the Defence.

63.One of the matters in dispute, as disclosed in the SOC, is whether the 2005 SPAs and the Impugned PA (or any of the power of attorneys) had allegedly been executed in the way they appear on these documents.  Particulars as to how the agreements had been executed would likely throw light on the issue of whether such documents had been forged and falsely represented as alleged. They are highly relevant to the wrongful acts issue as identified above.

64.On questions (d) to (f) about the provisional sale and purchase agreements, I do not think they fall within the same category as questions (a) to (c).  The question of whether the Plaintiffs entered into any provisional sale and purchase agreements prior to the alleged entering of the 2005 SPA, in my view, neither arises from the plea nor from my analysis of the matter in dispute.  On any view, questions (d) to (f) tend to seek for evidence, and should not be allowed.

F.5  Paragraph 26 (c) of the defence (Request 5)

65.Paragraph 26(c) pleads,

“the executions of the said agreements by the 1^st to 5 Plaintiffs or their lawful attorneys were duly attested by the 1^st – 4^th Defendants or one or more of them.”

66.The Plaintiffs wish to know the particulars of attestation including the identity of the Defendants, the exact date, the place, and whether it was done in the presence of the Plaintiffs or their lawful attorneys etc.

67.Apart from providing the sale and purchase agreements, confirming that the agreements were made in the presence of the Plaintiff and/or their lawful attorneys, and that the Defendants only attested the signatures of the Plaintiffs and/or of their lawful attorneys; the Defendants declined to provide particulars concerning the exact dates of and the place of the attestation on the ground that they were self-explanatory.

68.As discussed above, the circumstances of how the 2005 Agreements came about are highly contentious.  To say that the 2005 SPAs have already been provided to the Plaintiffs would have made these particulars unnecessary is to ignore the underlying allegations the Plaintiffs make in the claim in respect of the 2005 SPAs and the Impugned PA- which are that these documents (that had been used for the disposal of the houses) do not represent the true circumstances on how these documents came into existence. It cannot therefore be right that the physical presence of the documents make the information self-explanatory.

69.Based on the analysis in Sub-section F.4 above, and for the same reason, I’d be inclined to the view that they are relevant.

G.  Conclusion

70.Save for Requests 2, 3 and 4 (d) to (f), I am satisfied that the Plaintiffs are able to demonstrate that the particulars are necessary for the fair disposal of the matter and issue in dispute and to enable the Plaintiffs to know what case they have to meet.  I order the Defendants to answer Request 4(a) to (c) and Request 5.

H.  Order

(1) Within 14 days from the date of the handing down of this decision, the Plaintiffs do file and serve the answers set out in section G above.

(2) On a nisi basis, the Defendants do pay the Plaintiffs 50% of the costs of the summons, including all the costs previously reserved, with certificate for counsel.  The costs are to be summarily assessed on paper if they cannot be agreed.  The Plaintiffs are to lodge and serve a statement of costs within 14 days of the handing down of this decision and the Defendants likewise are to lodge and serve their opposition 7 days thereafter.

(3) Any application to vary the costs order nisi shall be made by summons within 14 days, failing which the costs order nisi is to become an absolute costs order.

71.It remains for me to thank counsel for their assistance.

Mr Raymond Fong, instructed by Fung Wong Ng & Lam, for the Plaintiffs

Mr K M Chong and Ms Emma Wong, instructed by Ho Tse Wai, Philip Li & Partners, for the 1^st- 4^th Defendants