Sanctuary Systems Ltd v. Orient International Holdings Hong Kong Co Ltd and Others

HCA 479/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 479 OF 2010

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R U L I N G

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1.The first amendment concerns paragraph 9. The opening words of paragraph 9 refer to the 1st defendant knowing or had notice that the funds were paid by the plaintiff to it pursuant to the Purpose. It is a case based on actual notice.

2.The proposed amendment is premised on the averment that D1 “should have made reasonable enquires with Orient Shanghai and upon which became aware of” certain matters.  This is not a situation of actual notice.  It is not clear from the newly pleaded case how D1 should have that duty to make reasonable enquiries.

3.The second proposed amendment arose after D1 has filed the opening submission.  It is a new cause of action based on restitution.  There is no reason put forward by the plaintiff for the delay in making this proposed amendment, notwithstanding that the plaintiff has had prior opportunities to do so. 

4.The fact is that Mr Wou has not pointed to any aspect of facts which he needs to plead to his defence.  Even so, it is inappropriate to say in haste that there is absolutely no need for D1 to plead facts in reply and the whole thing is only a matter of law.

5.The trial has started and the first witness is due to be called.  It distracts defence counsel’s attention from proper management of his case if he is required to consider what further amendments are required to meet a case that he has not prepared to meet today.  One of the plaintiff’s witnesses has to leave latest by the end of tomorrow.  I do not consider it fair to any party for defence counsel to start cross-examination today and put forth his amended case only some time later in the course of the trial.

6.On top of all this, the second amendment, in particular, concerning restitution, covers the position of D2 as well, but D2 is absent today and does not have prior notice of these amendments. 

7.Considering all the circumstances, I am of the view that the application for amendment should not be allowed and I dismiss the summons.

Mr Jenkin Suen, instructed by Haldanes, for the plaintiff

Mr Jean-Paul Wou, instructed by Deacons, for the 1^st defendant

The 2^nd defendant was not represented and did not appear