Hau Hon Shek v. Chung Fu Cheung

HCA 1731/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1731 OF 2011

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D E C I S I O N

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1.The application before the court was an application made on behalf of the defendant appealing against a decision of Master de Souza to strike out an affirmation made by the defendant.  The master accepted the submissions advanced on behalf of the plaintiff to the effect that the defendant had misstated his address in making the affirmation, and had provided an address which was non‑existent or illusory.  While I have given due deference to the experience of the master, for my own part, rehearing the matter de novo, I have found it impossible to come to the same conclusion.

2.The application, and the striking out of the affirmation, carries some additional importance because the plaintiff has also made an application, which is to be heard separately, to strike out the defendant’s defence on the basis that the defendant has failed to comply with the terms of an unless order. That unless order required certain discovery of documents to be given, but also an affirmation to be made, relating to the discovery and providing the residential address of the defendant.  It is that affirmation which is the subject of the attack in this application and which was struck out by the master. It is worth noting however that the defendant has made several affirmations, all of which carry the same address.

3.The plaintiff alleges that the misstatement on the part of the defendant is deliberate.  The defendant, not unsurprisingly, denies this, and counsel asks rhetorically what the purpose of such a misstatement would be. The subject matter of the underlying action is a small house, and the defendant has taken part in the proceedings to date, albeit tardily on a number of occasions.  The plaintiff submits that the misstatement of the address was, in effect, “the final straw” following a long series of non‑compliances on the part of the defendant, and a series of unless orders leading to the strike out application. 

4.It was however common ground between the parties that the primary purpose of the inclusion of an address in an affirmation is to identify the deponent, and there does not seem to be any question whether or not the “correct” person has been identified in the affirmations.

5.Nevertheless, it remained the plaintiff's case that the defendant was acting “mala fides”, and was attempting to mislead the court by the evidence he was adducing in purported compliance with court orders.  In addition the plaintiff prayed in aid alleged inconsistencies between statements made by the defendant in earlier bankruptcy proceedings and his evidence on affirmation in the current proceedings.

6.The defendant submitted, while not accepting that there was any misstatement at all, that it would not be appropriate for the court to strike out the affirmation on the basis of a misstatement of address based solely upon affidavit evidence.  There could be no proper decision to strike out without coming to the conclusion that the address was in fact misstated, and the affidavit evidence was conflicting on this point.  If, in any event, it was to be said that the address was misstated, there was no question about the correct identity of the deponent, and any error should be capable of correction or rectification under Order 41, rule 4.

7.At the conclusion of the hearing I indicated to the parties that I found it unsatisfactory in the circumstances of this case for a conclusion to be reached on affirmation evidence as to whether or not the address had been misstated and, equally importantly, whether this was a deliberate attempt to mislead the court.  The submissions made by counsel for the plaintiff showed that the plaintiff’s concern as to the absence of bona fides on the part of the defendant arose out of a wide range of matters.  Not all of those matters were fully canvassed in the affirmation evidence.  In those circumstances it seemed to me inappropriate to ask the court to make a determination of deliberately misleading conduct on the basis of contested affirmations.

8.In any event it appeared to me that even if the plaintiff’s contentions were accepted as being correct, it would not be appropriate to strike out the affirmation.  This was because the misstatement appears to have had no impact on the identification of the defendant/deponent, nor does it have any impact on the subject matter of the claim or the conduct of the proceedings except to the extent of the application, to be heard elsewhere, in relation to the non‑compliance with the unless order.

9.The alleged non‑compliance with the unless order is a matter to be heard before another judge in the relatively near future.  The failure to state the true residential address is one of the matters canvassed in the summons to be heard before that judge, and there is the potential for inconsistency in findings if a decision on this strike out application was taken separately from the broader matters addressed in the summons regarding the non‑compliance with the unless order.

10.For these reasons I have come to the conclusion that the master was wrong in the exercise of his discretion and, hearing the matter de novo, I am not myself persuaded that the affirmation should be struck out.  In those circumstances I allow the defendant’s appeal.

11.After hearing submissions on costs from the parties I ordered that the costs of the appeal and of the hearing before the master were to be to the defendant.  I acceded to the application made on behalf of the defendant that there should be a gross sum assessment, and directions were given for an exchange of submissions in writing on that point.

Mr Remedios Jose D Almada, instructed by John Ip & Co, for the plaintiff

Mr Alan Kwong, instructed by Tung, Ng, Tse & Heung, for the defendant