Hau Kwai Choi and Another v. Hau Wai Keung

DCCJ4285/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4285 OF 2012

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REASONS FOR DECISION

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Introduction

1.The trial of the present action (“the Trial”) has been fixed before me commencing from 23 April 2014 with 3 days reserved.

2.On 17 April 2014, the defendant wrote into court stating:-

“In the premises, we are instructed and hereby give early notice (so as to save costs and Court’s time) that the Defendant is going to make by 22 April 2014 a formal application by Summons for adjournment of the trial hearing on the bases of (and together with) the Defendant’s intended applications:-

(1) for leave to file and serve the new Statement of Mr Hau Wai Kin dated 17 April 2014 and Statement of Mr Kuk Kong Sang; and

(2) for leave to re-amend the Amended Defence and Counterclaim in view of the new evidence”.

3.On 22 April 2014, one day before the Trial, the defendant filed the summons (“the Summons”) (at 4:45 pm according to the court record) with an affirmation in support (“the Supporting Affirmation”), applying for leave:-

(1)   to file and serve a witness statement of Hau Wai Kin dated 17 April 2014;

(2)   to file and serve a witness statement of Kuk Kong Sang dated 22 April 2014; 

(3)   to amend the Amended Defence and Counterclaim per the draft Re-Amended Defence and Counterclaim; and

(4)   to vacate the Trial with liberty to restore. 

4.The defendant then served the Summons onto the plaintiffs’ solicitors shortly before 6 pm on 22 April 2014. The plaintiffs’ counsel also complains that prior to the Summons the defendant did not provide the witness statement of Kuk Kong Sang and the Re-Amended Defence and Counterclaim in draft form to the plaintiffs’ solicitors[1].

5.After having heard counsel’s submissions, I dismiss the Summons with reasons to follow as set out below.

The plaintiffs’ claim

6.I shall begin by setting out the respective pleaded cases of the parties.

7.The plaintiffs’ claim against the defendant is simple and straight-forward.  They plead in the statement of claim as follows:-

(1)   The 1^st named plaintiff is the father of the defendant and the 2^nd named plaintiff is the step-mother of the defendant;

(2)   The plaintiffs were and are the registered owners of the property known as Kam Tsin Lot No 65 in Demarcation District 92, North New Territories (“the Land”) and the messuages erections and building thereon comprising the Ground Floor,First Floor, Second Floor and the Roof;

(3)   In or about 2000, the plaintiffs granted a licence (“the Licence”) to the defendant to use and occupy the Second Floor and the Roof on the Land without consideration in monetary terms (“the Premises”);

(4)   By letter dated 5 July 2012, the plaintiffs’ then solicitors gave notice to the defendant to terminate the Licence.  The defendant was demanded to deliver up vacant possession of the Premises to the plaintiffs on or before 10 July 2012;

(5)   By letter dated 19 September 2013, the plaintiffs’ then solicitors gave one-month notice to the defendant to terminate the Licence.  The defendant was demanded to deliver up vacant possession of the Premises to the plaintiff on or before 20 October 2012;

(6)   Despite repeated requests and demands, the defendant has failed and/or refused to deliver up vacant possession of the Premises to the plaintiffs.

8.The plaintiffs accordingly claim vacant possession of the Premises from the defendant.

Amended Defence & Counterclaim

9.In gist, the defendant denies that he is merely a licensee as alleged by the plaintiffs.  The defendant further avers that the plaintiffs are not entitled to possession or exclusive possession of the Premises.  The defendant pleads in the Amended Defence and Counterclaim as follows:-

(1)   The 1^st named plaintiff has been the registered owner of the Premises since early 1980s.  The 2^nd named plaintiff has only become a registered joint tenant since or around March 2012;

(2)   In or about 1975, the 1^st named plaintiff obtained by succession the land upon which there was a small house which was subsequently demolished and replaced in or about early 1980s by a three-storey house comprising in part the Premises (collectively “the Property”).  The defendant contributed about £5,000 pounds sterling (“the Sum”) to the costs of building the Property.  He entrusted the Sum to his mother who, together with the 1^st named plaintiff, arranged it to be sent back to Hong Kong for the purpose of building the Property;

(3)   It was an express, or alternatively, an implied, term of the agreement by reason of the defendant’s contribution (“the Agreement”) that the defendant should have an interest in the Property and be entitled to exclusive possession and enjoyment of some part of the Property (as now comprises the Premises).  Or alternatively, by reason of the defendant’s contribution to the costs of building the Property, the 1^st named plaintiff holds the Property in part on constructive trust for the defendant.  Or further alternatively, it is a custom in the New Territories that the sons will have the customary right to use and/or be given property of the 1^st named plaintiff;

(4)   The 1^st named plaintiff and his whole family, including the defendant, were all residing in England before mid 1990s.  The defendant worked and saved about £25 pounds sterling weekly for about four years from 1976 to end of 1979 which he entrusted to his mother.  Towards the end of 1979, the defendant left to work in West Germany.  The defendant visited Hong Kong with his mother and resided in the Property for about one month in or about February 1987.  The 1^st named plaintiff retired in about mid 1990s and returned to Hong Kong to marry the 2^nd named plaintiff.  The defendant returned to Hong Kong in about 2000 and since then has been residing in the Premises with his family without making any payment save for some minor expenses in maintenance of the Premises;

(5)   In the premises, pursuant to the Agreement and by reason of the defendant’s contribution to the costs of building the Property, the 1^st named plaintiff holds the same or the Premises as constructive trustee for occupation by the defendant since the completion of the building of the Property.  By allowing the defendant and his family members to reside in the Premises since 2000 and to pay for the upkeep and maintenance of the Premises over the years, the 1^st named plaintiff affirms the existence, effect and terms of the Agreement;

(6)   Since 2000, the defendant and the 1^st named plaintiff jointly invested to construct abuilding in China.  It was registered in the joint names of the plaintiffs and the defendant.  For about ten years since its completion, the plaintiffs refused to share rental income with the defendant.  Upon the defendant’s repeated protest and demand, it was eventually sold and the proceeds thereof were divided and shared.  The relationship between the plaintiffs and the defendant has turned hostile since then;

(7)   By a Deed of Gift dated 31 January 2012 (“the Deed of Gift”) and registered on 5 March 2012, the 1^st named plaintiff, in breach of the Agreement and/or constructive trust, wrongfully conveyed the Property to him and the 2^nd named plaintiff as joint tenants.  By seeking to evict the defendant from the Premises and alleging that the defendant is merely a bare licensee, the 1^st named plaintiff also seeks to take unconscionable advantage of the defendant and his share of interest in the Property.  In the premises, the Deed of Gift is null and void; and

(8)   Or alternatively, the 2^nd named plaintiff is only entitled, as a joint tenant, to beneficial interest, occupation and possession of the Property, if any, to the extent as enjoyed by the 1^st named plaintiff since the completion of the Property.  Neither of the plaintiffs is entitled to any interest and/or exclusive possession of the Premises.

10.Basing on the aforementioned, the defendant further counterclaims against the plaintiffs for:-

(1)   A declaration that:-

(a)    the Deed of Gift was wrongfully executed and registered in the Land Registry and is therefore null and void and of no effect;

(b)   the defendant is entitled to a beneficial interest in the Property to the extent as represented by his contribution to the costs of building and erecting the Property in around or since early 1980s;

(c)    the defendant is entitled to exclusive occupation and possession of the Premises; and

(d)   the defendant is entitled to be registered with the 1^st named plaintiff as tenants in common of the Property.

(2)   An order that the registration of the Deed of Gift be vacated from the Land Registry;

(3)   An order that the 1^st named plaintiff do forthwith execute an assignment to convey the Property into the joint names of the defendant and the 1^st named plaintiff as tenants in common in such shares as the court shall deem fit; and

(4)   Damages for breach of the Agreement and/or constructive trust by the 1^st named plaintiff. 

Reply and Defence to Counterclaim

11.The plaintiffs reply to the defendant’s case above in the Reply to Amended Defence and Defence to Amended Counterclaim as follows.

12.The Plaintiffs deny that the Defendant had contributed to the Property:-

(1)   The 1^st named plaintiff is an indigenous villager of Kam Tsin Village in Sheung Shui, New Territories. Hau Tai Fong Mui was his first wife (“the First Wife”).  Out of their union, 6 children were born, namely, Hau Wai Kin, the defendant, Hau Wai Man, Hau Wai Yan, Hau Wai Kam and Hau Wai Fung;

(2)   In about 1965, the 1^st named plaintiff immigrated to England.  He worked as a cook from 1973 onwards until about 1981.  The First Wife and the children eventually joined him there;

(3)   Because of the size of the family, Hau Wai Kin began to work in 1972.  He contributed £5 to £10 to the family out of his weekly earnings of about £17;

(4)   The defendant began to work in 1976.  He contributed around £5 to £10 out of his earnings of about £11 to £12 per week to the family.  He worked intermittently for a total period of not more than 2 years until 1979 when he went left to work at a restaurant of the 1^st named plaintiff’s brother in West Germany.  Thereafter he had ceased making any contribution to the family;

(5)   Hau Wai Man did not make enough to contribute to the family.  Hau Wai Yan, Hau Wai Kam and Hau Wai Fung were all too young to work;

(6)   The 1^st named plaintiff’s financial position had improved after his acquisition of a Chinese restaurant in about 1981;

(7)   In about 1981, the 1^st named plaintiff decided to demolish the dilapidated old village house on the Land and to rebuild a new 3-storey village house (“the House”);

(8)   Between 1981 and 1984, the 1^st named plaintiff had by himself and others brought about £17,000 to £18,000 (equivalent to about HK$170,000) back to Hong Kong for the purpose of redevelopment of the Land:-

(a)    In about 1981, the First Wife brought £3,000 to Hong Kong to make down payment for the construction fees of the House;

(b)   Later in the same year, Hau Wai Kin and Hau Wai Man had each brought £4,000 and £3,000 back to Hong Kong;

(c)    Between 1982 and 1984, the 1^st named plaintiff brought about £7,000 to £8,000 back to Hong Kong; and

(d)   The construction of the House commenced in 1982 and was completed in 1984.

(9)   Any money given by the defendant to the 1^st named plaintiff or the First Wife was his contribution towards the household expenses of the family.  There was never any understanding or agreement that his money would be used for the development of the Land and the construction of the House;

(10) After the completion of the House in 1984, the 1^st named plaintiff rented the Premises out; and

(11) The health condition of the First Wife deteriorated and died in 1988.  She could not have travelled with the defendant to Hong Kong in 1987 as alleged.

13.The plaintiffs further allege that the defendant and his family have been allowed to reside in the Premises because he is the son of the 1^st named plaintiff and they have nowhere else to stay:-

(1)   The 1^st named plaintiff returned to Hong Kong for good in 1996 and has since then been residing on the Ground Floor and First Floor of the House.   He married the 2^nd named plaintiff in 1999;

(2)   The defendant returned to Hong Kong in or about 2000.  He married Liu Hun Hun in the same year.  The 1^st named plaintiff allowed him to reside in the Premises.  The defendant had paid for the electricity bills of the Premises.  Since about 2012, the defendant has also been responsible for paying the water charges of the Premises;

(3)   The 1^st named plaintiff has through the plaintiffs’ former solicitors given notice to the defendant to terminate the Licence.

14.Regarding their property in Shenzhen, China, the plaintiffs plead as follows:-

(1)   The plaintiffs and the defendant were the registered owners of a building situated at No 38 Kak Tong Village, Pu Chee, Shenzhen, China (“the Shenzhen Property”);

(2)   The construction of the Shenzhen Property was completed in about March 2003 and the rent collected had been used by the plaintiffs to repay the outstanding unpaid building costs;

(3)   Since about 2005, the defendant had claimed for a share in the rental.  The plaintiffs refused;

(4)   As a result, there were incessant quarrels between the plaintiffs and the defendant and the defendant’s wife.  The plaintiffs agreed to sell the Shenzhen Property under the pressure of the defendant.  The sale was arranged by the defendant at a price which the plaintiffs believe to be below the market price; and

(5)   The plaintiffs terminated the Licence not only because of the dispute with the defendant over the Shenzhen property but also because the defendant, the defendant’s wife and their daughter did not respect the plaintiffs.

Agreed list of issues

15.The areas in contention between the parties in the present action are clear.  The parties have framed and agreed the issues in dispute as follows:-

(1)   Whether the defendant did contribute to the costs of building the Property, thereby having an interest in the Property and is therefore entitled to possession and enjoyment of the Premises?  Alternatively, whether by way of such contribution if so proven the 1^st named plaintiff holds the Property on constructive trust for the defendant;

(2)   Whether by reason of the defendant’s contribution to the costs of building the Property, an express or implied term exist that the defendant is entitled to possession of some part of the Property under the Agreement;

(3)   Whether the Deed of Gift to the 2^nd named plaintiff is to be null and void as being in breach of the Agreement and/or constructive trust; and

(4)   Whether the plaintiffs are entitled to have the vacant possession of the Premises?  Alternatively, whether the defendant is entitled to any of his counterclaims.

16.The matters set out above lay the background against which I shall proceed to consider the Summons.

Applicable legal principles

17.The plaintiffs’ counsel highlights paragraph 34 of Practice Direction 5.2 in her written submissions:-

“A PTR is not an extension of the CMC. The Court expects a case to be ready for trial. Late interlocutory applications may be dismissed on the basis of delay alone”.

18.Paragraph 42 of Practice Direction 5.2 further states:-

“Milestone dates will be immoveable save in the most exceptional circumstances and for that purpose, for instance, late instructions from client, change in the team of lawyers, the absence of prejudice to the other party which cannot be compensated for by costs, will not be treated as exceptional circumstances”.

19.In Li Xiao Yun v China Gas Holdings Limited, CACV 38/2013 (unreported, judgment dated 11 March 2013), the Court of Appeal dismissed an appeal against the trial judge’s refusal of a last minute pre-trial application to add new defendants and to amend the pleadings on the ground of delay and that the trial date would very likely to be derailed.  Lam JA gave reasons for the decision and held at paragraph 18:-

“ …… Last minute pre-trial applications also disrupt the preparation for the trial on the part of a trial judge in terms of reading into the case. Instead of getting himself or herself familiar with the issues that have to be tackled at the trial, the judge would have to divert attention and spend time and efforts on such application. Thus, such practice has to be discouraged and, unless there are good justifications, the unsuccessful appellant should normally be expected to face an order for indemnity costs”.

20.In Waddington Limited v Chan Chun Hoo Thomas, HCA 3291/2003 (unreported, judgment dated 7 May 2013), Deputy High Court Judge D Lok reiterated that late applicationscould be dismissed on the basis of delay alone in accordance with paragraph 34 of Practice Direction 5.2:-

“51. In this action, the parties have taken out a lot of late applications shortly before the PTR. This practice is highly unsatisfactory and should be discouraged. Apart from the prejudice likely to be caused to the parties by such late applications including the possible adjournment of the trial, there is serious disruption to the court diary as the court has to struggle to find some time during the limited time before the trial to hear the applications.

…

53.   Express warning about late applications has already been given in §34 of Practice Direction 5.2, and practitioners should be reminded that late applications may be dismissed on the basis of delay alone.  Unless there are exceptional circumstances and there are good reasons for the delay, one should not expect the courts to grant any late applications taken out shortly before the PTR”.

21.As submitted by the plaintiffs’ counsel, the sentiments expressed by the court in the cases above should be even more compelling in the present case when the defendant has made the application one day before the Trial.

22.The defendant’s counsel admits that there is delay.  It is difficult and unrealistic to contend otherwise.

23.The defendant has not filed any skeleton argument elaborating why and on what basis should the Summons be allowed by the court.  This is perhaps not the most helpful or appropriate thing to do in the circumstances considering that this is the defendant’s application and the defendant has made the application late.    

Whether leave should be given to file witness statement of Hau Wai Kin and witness statement of Kuk Kong Sang

24.In seeking leave to file the witness statement of Hau Wai Kin, the defendant relies on the following matters set out in the Supporting Affirmation:-

“3. In early April 2014, whilst I was preparing for the trial of the present action, I was approached and contacted by my elder brother, Hau Wai Kin, who told me that:-

(a) He is going to give evidence at the trial hearing to the effect that the contents of his Witness Statement filed on 10 September 2013 in the captioned action do not represent the truth. Further on 17 April 2014 he gave me a copy of his Statement made on 17 April 2014 to that effect…

4.     I have been advised by my lawyers and verily believe that these new evidence from Hau Wai Kin and Kuk Kong Sang are essential for the fair disposition of the issues and maybe amicable resolution of the disputes in this action and I have hence decided to make application which I hereby do to the Court for permission to adduce these new evidence despite at this late stage of the proceedings …” 

25.It can be seen from the witness statement of Hau Wai Kin that he has become aware of the falsity of the contents of his previous witness statement shortly after he filed it for the plaintiffs in August 2013 with the benefit of the translation provided to him by the defendant’s other witness, Hau Wai Yan:-

“In August of 2013, I have signed a document for my Father. At that time my Father called me and said the content of this document is to prove which year the old house has been reconstructed. He instructed me to immediately sign the document upon receipt and send it back to Hong Kong to him. Around the end of August 2013, my first younger sister Hau Wai Yan and her husband Jimmy flew from Germany to the United Kingdom with the document I signed back in August 2013 and asked me angrily why did I lie [sic] to assist my Father. At that time I told them that I did not read the content of the document because it was all in English and I don’t know English. In addition it was a request made by Father so I listened to him and signed it. Afterwards my first younger sister Hau Wai Yan translated the content of the document to me in Chinese. After Hau Wai Yan explained the content of the document to me, I was shocked because what my Father said about my second younger brother (Hau Wai Keung) is the total opposite. The truth is my Father is that type of person, my Father likes to gamble and he was the one who sought my second younger brother for help because my second younger brother has always been financially stable”.

26.By a statement of truth appended to his previous witness statement, Hau Wai Kin stated his belief in the truth of the facts stated and in the honesty of the opinion expressed therein.

27.But Hau Wai Kin has not taken any prompt step to correct his evidence upon discovery of its falsity since August 2013.  He has plenty of time to do so. He could have done much earlier on what he seeks to do now, namely, to file and serve a new witness statement stating that he was misled by the 1^st named Plaintiff, setting forth the events leading to the false evidence being given by him previously and finally deposing the truth, but he has chosen to withhold the correction until this very moment before the Trial.  This being the case, he should not be allowed to give evidence contained in his new witness statement when to do so would inevitably delay the Trial.  The defendant is bound by the conduct of Hau Wai Kin.  The defendant cannot distant himself from Hau Wai Kin and claims that the delay is not caused by the defendant’s fault bearing in mind that Hau Wai Kin now intends to give evidence on behalf of the defendant as his witness.        

28.The witness statement of Hau Wai Kin contains allegations against the 1^st named plaintiff.  As stated above, Hau Wai Kin accuses the 1^st named plaintiff to have instructed him to sign on his previous witness statement which he did not understand.  Ancillary to this is his allegation that the plaintiffs’ then solicitors did not explain the contents of his previous witness statement to him.

29.In addition, Hau Wai Kin has also raised some new materials in his new witness statement as follows:-

“ … After the completion of the reconstruction of the new house, Father and Mother had repeatedly agreed and promised to me that each Brother will each have one flat. I did acknowledge and confirm my Mother gave the funds to my Father when he went back to Hong Kong. I also confirm all my Brothers did give to mother our weekly salary.

After all our brother and sisters started to work, Father and Mother always reminded us to work hard and earn money, to earn enough money to reconstruct the old house. Father and Mother also said that we would have a house to live in after we get married. In the future, the three brothers will each get a floor. All the brother and sisters were really good and worked really hard. We gave most of our weekly salary to Mother to be used for the reconstruction of the old house in the future. I have seen my second brother Hau Wai Keung give money to Mother many times and mother said that this money is going to be used for the reconstruction of the old house …

In November 2013 my father called me again and asked me to return to Hong Kong before 23^rd April 2014 and attend court to be his witness and say that my second younger brother never gave 5000 pounds to mother for the reconstruction of the old house. I asked father why he made up so many lies to destroy second younger brother Hau Wai Keung. Father said, second younger brother’s wife Liu Hung Hung is really bad and does not respect him therefore Father has to kick them out of the house. I told him I will not act against my heart and be his witness. Father said that even if I don’t be his witness, he will still win his case. I have to tell the truth today. Everything I said above is true”.

30.These are all matters which the plaintiffs would wish to address, canvass and deal with by way of further evidence, whether from the 1^st named plaintiff or otherwise.  This means that the Trial would not be able to proceed as scheduled.

31.Turning now to the witness statement of Kuk Kong Sang, the defendant states at paragraph 3 of the Supporting Affirmation that Kuk Kong Sang has expressed his “eagerness to tell the truth and his intention to join as a witness in this action”.

32.The defendant is clearly aware of the court orders made regarding the filing of witness statements.  On 17 June 2013, Master TShum ordered:-

“3. Each party shall file and serve, within 70 days from the date hereof, written statements as to facts of the following witnesses:

For the Plaintiff: Hau Kwai Choi, Hau Wai Kin, Hau Wai Man and Hau Wai Fung

For the Defendant: Hau Wai Keung and Hau Wai Ying

Such statements shall be accompanied by their respective statements of truth and shall stand as evidence-in-chief of the respective witnesses, unless the trial judge directs otherwise”.

33.On 29 August 2013, Master D Ho ordered:-

“6. Unless the parties do file and serve witness statements as to facts in accordance with paragraph 3 of the order of Master Timon Shum dated 17^th June 2013 by 4:00 pm on 17^th September 2013, the defaulting party shall be debarred from calling any witnesses to give testimony at trial”.

34.The defendant has failed to explain why Kuk Kong Sang should be allowed to give evidence contained in his witness statement in breach of the orders above after inordinate delay.

35.Kuk Kong Sang has made diverse allegations against the 1^st named plaintiff in his witness statement.  By way of examples:-

“26. In or around December of 2012, the 1^st plaintiff suddenly went to London and asked for a family meeting with Wai Kin, Wai Man and my wife who is all living in London. By the time when the 1^st plaintiff was in London, he was first staying in the home of Wai Man, and subsequent in the home of my wife.

27. The 1^st plaintiff had called for at least three meetings between Wai Kin, Wai Man and my wife. And I have also attended those meetings with my wife.

28. During all those meetings, the 1^stplaintiff was making numerous complaints to the conduct of the Defendant in this action, and that of his wife and his daughter showing no respect to him and the 2^nd plaintiff in this action. And in particular that the dispute concerning their house in Shenzhen, which I understood should be the beginning of mishaps.

29. The 1^stplaintiff pronounced to Wai Kin and Wai Man that he should change his mind not to allocate one-third of the shares of the land in Kam Tsin village, and therefore the re-built village house erected on top to the Defendant in this action as originally decided with his late wife.

30. As a new protocol, the 1^stplaintiff told Wai Kin and Wai Man that the interest of the land in Kam Tsin village and the re-built village house erected on top would now be shared between the 2^nd plaintiff, Wai Kin and Wai Man equally.

…

32. The 1st plaintiff also informed the children to the meeting that the Defendant in this action claimed to have contributed 5,000 pounds to the re-building of the village house. He then demanded the children of the family, in particular that Wai Kin and Wai Man to assist him in testifying against the Defendant’s testimony.

…

46.   Upon the request of Wai Kin, I finally meet with the Defendant in this action, and also his wife and daughter concern.  I understand from them directly the truth of the events as told by them that all the allegations put forward by the 1^st and 2^nd Plaintiffs to the court of justice is not true at all…”

36.Likewise the plaintiffs would wish to respond to these matters by way of further evidence, whether from the 1^st plaintiff or otherwise.

37.To allow the defendant to adduce the witness statement of Kuk Kong Sang would most certainly derail the Trial.

38.Further, as submitted by the plaintiff’s counsel, I do not see how Kuk Kong Sang could add value to determination of the issues in dispute as identified and agreed by the parties at paragraph 15 above.  He is not claiming any personal knowledge of the payment of the Sum by the defendant or the Agreement between the defendant and the 1^st plaintiff. 

39.For these reasons, I refuse leave to file and serve the witness statement of Hau Wai Kin and the witness statement of Kuk Kong Sang.

Whether leave should be given to amend Amended Defence & Counterclaim

40.Deputy High Court Judge D Lok has summarized the principles applicable to amendment of pleadings in Li Shiu To v Li Shiu Tsang, HCA 416/2003 (unreported, judgment dated 14 August 2012):-

“14. The principles under which the court exercises its discretion to allow or refuse amendments to pleadings can be summarised into 4 prepositions (see: Ketteman v Hansel Properties Ltd [1987] 1 AC189, per Lord Brandon at p 212F–H):-

(i) first, all such amendments should be made as are necessary to enable the real questions between the parties to be decided;

(ii) second, amendments should not be refused solely because they have been made by the honest fault or mistake of the party applying for leave to make them: it is not the function of the court to punish parties for mistakes which they have made in the conduct of their cases by deciding otherwise than in accordance with their rights;

(iii) third, however blameworthy (short of bad faith) may have been a party’s failure to plead the subject-matter of a proposed amendment earlier, and however late the application for leave to make such amendment may have been, the application should, in general, be allowed, provided that allowing it will not prejudice the other party; and

(iv) fourth, there is no injustice to the other party if he can be compensated by appropriate orders as to costs.

…

16.   I agree that the Ketteman principles remain good law after the CJR, but I must put a caveat here.  First, the new O 1A of the RHC makes it clear that the court shall give effect to the underlying objectives when it exercises its power or interprets the RHC, including increasing cost-effectiveness of litigation, ensuring that a case is dealt with as expeditiously as is reasonably practicable, promoting a sense of reasonable proportion and procedural economy in the conduct of proceedings, facilitating the settlement of disputes and ensuring that the resources of the court are distributed fairly.  If the amendment application is made in circumstances offending these underlying objectives, the court may have to balance all the factors in the case in determining whether to grant the application.

17.   Second, there is a heightened concern to guard against late applications after the implementation of the CJR. For case management purposes, there are now certain milestone dates in the course of litigation, and one of which would be the trial date.  If a party makes a late application to amend the pleading with the effect that the trial date may have to be adjourned, the court would be very reluctant in allowing the application unless there are exceptional circumstances. Indeed, adjournment of the trial is now considered as a serious prejudice to the parties involved in litigations.  Hence, one should not assume that, once the Ketteman principles are satisfied, the court would automatically grant an application for amendment of pleading in particular at a very late stage of the proceedings” (emphasis added).

41.The defendant claims that in view of the new evidence the following paragraphs of the Amended Defence and Counterclaim would have to be amended (as underlined):-

(1)   Paragraph 5: “It was an express, alternativelyan implied term and/or common intention of the agreement by reason of the defendant’s contribution (“the Agreement”) that the defendant should have and share with his two brothers an interest in the property and be entitled to exclusive possession and enjoyment of some part of the property as now comprises the Premises.  Alternatively, by reason of the defendant’s contribution to costs of building the Property, the father holds the Property in part on resulting and/or constructive trust for the defendant …”;

(2)   Paragraph 6: “ … The defendant returned to Hong Kong in about the year 2000 and since then has been exclusively possessing and residing in the Premises with his family as owner without any payment save for some minor expenses in maintenance of the Premises”;

(3)   Paragraph 7: “In the premises, pursuant to the Agreement and by reason of the defendant’s contribution to the costs of building the house as aforesaid, the father holds the Property or the Premises as constructive and/or resultingtrustee for occupation by the defendant since the building of the Property as completed … The plaintiffs are thus estopped from denying the defendant’s title, interest and/or rights in and/or over the Premises”;

(4)   Paragraph 7A: “If, contrary to the defendant’s contention that he is the beneficial owner of the Premises, the defendant has exclusively possessed and occupied the Premises since about the year 2000 under the mistaken belief that he is the owner of the Premises, the defendant has already dispossessed the plaintiffs as paper title owners and has possessed the Premises continuously since that time and exercised all the rights of an owner over the Premises for over 12 years before the issue of the claim in this action.  Accordingly, the plaintiffs’ right of action to recover possession of the Premises is time barred under section 7(2) of the Limitation Ordinance (Cap 347)”;

(5)   Paragraph 22: “Alternatively, the plaintiffs’ title, interest and/or rights in and/or over the Premises has been absolutely extinguished by virtue of Section 17 of the Limitation Ordinance (Cap 347) and thus the defendant is entitled to a declaration that the defendant has been in adverse possession of the Premises for a period of no less than 12 years prior to the commencement of the present action, and has thereby acquired and is entitled to the possessory title, interest and/or rights in and/or over the Premises”; and

(6)   Prayer 4A: “Alternatively, a declaration that the plaintiffs have lost their right to bring any action to recover the Premises against the defendant by virtue of section 7(2) of the Limitation Ordinance (Cap 347), the plaintiffs’ title, interest and/or rights in and/or over the Premises has been absolutely extinguished by virtue of Section 17 of the Ordinance and the defendant has been in adverse possession of the Premises for a period of no less than 12 years prior to the commencement of the present action, and has thereby acquired and is entitled to the possessory title, interest and/or rights in and/or over the Premises”.

42.The amendment proposed to be made by the defendant to paragraph 5 of the Amended Defence and Counterclaim is given rise by the new evidence contained in the witness statement of Hau Wai Kin.  Since I have refused leave to file and serve the witness statement of Hau Wai Kin, the proposed amendment should also be refused. 

43.With respect to the rest of the proposed amendments, contrary to the submission of the defendant’s counsel, they simply do not arise from the witness statement of Hau Wai Kin or the witness statement of Kuk Kong Sang.  In particular, the adverse possession and time bar point do not turn on the new evidence sought to be adduced by the defendant.

44.The defendant has failed to explain why late amendments as such should be allowed by the court.

45.In this relation, I have not lost sight of the fact that the defendant has been legally represented throughout the present action.

46.Further, I agree with the submission of the plaintiffs’ counsel that new evidence would have to be calledon the question of whether the defendant enjoyed exclusive possession of the Premises since 2000.  In doing so and as a result, delay would be caused to the Trial such that it can no longer proceed as scheduled.

47.For these reasons, I refuse leave to amend the Amended Defence and Counterclaim.

Conclusion

48.I accordingly dismiss the Summons.

49.I am satisfied that the sum of $38,108 claimed by the plaintiffs in the statement of costs is reasonable.  I order the same to be payable to the plaintiffs forthwith.

50.In view of my decision above, the Trial shall proceed as scheduled.

Miss Angela Gwilt, instructed by Huen & Partners, for the 1^st and 2^nd plaintiffs

Mr Mattew CS Chong, instructed by Wong Poon Chan Law & Co, for the defendant