Woo Hoi Lun and Others v. Lai Yung

DCCJ 2312/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2312 OF 2012

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DECISION

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1.This is an application taken out by the defendant by way of a Summons dated 25 July 2014 to file and serve the Reply to Defence to Amended Counterclaim as per the draft attached with the Summons.

2.The trial of this action will take place very soon on 19 August 2014 with an estimated length of trial being 6 days.

3.No doubt this is a late application to file an additional piece of pleadings from the defendant.  In his submission, Mr Ho on behalf of the defendant argues that this additional piece of pleading is just a short legal point.  No additional evidence is required.  He refers to Order 3 rule 5 (time extension) and Order 18 rule 12 (pleadings) as well as Order 20 rule 8 (amendment of pleadings) of the Rules of District Court in support of the application.

4.Ms Cheung on behalf of the plaintiffs objects to this late application.  Ms Cheung cites Hongkong Changyi Real Estate Development Limited v Neo-China (group) Infrastructure Investment Limited and Ors, HCA 1576/2011, judgment dated 25 February 2014 unreported. 

5.I fully endorse what was said by Madam Justice Mimmie Chan in Hongkong Changyi Real Estate Development Limited (supra) in which her ladyship said:-

“1. Nearly 5 years after the implementation of the Civil Justice Reform, parties should be under no doubt by now that the courts will have no hestitation now to reject a late application, made when trial is imminent, for either amendment of pleadings, discovery or the filing of witness statements, which application has the effect of disrupting the preparation for trial with the risk of milestone dates such as a pretrial review or the trial dates themselves being affected. Delay itself is a ground justifying refusal of leave, since delay of a trial is prejudice to a party, who has every right to expect that a trial fixed months ahead with due notice to the parties can proceed without disruption and time and costs being wasted…….”

6.That said, one must look at the proposed amendment in its context and see what impact it may have on the trial.  Here the proposed amendment from the defendant is merely to adduce a paragraph to reply to the plaintiffs’ Reply to Amended Defence and Defence to Amended Counterclaim filed on 18 December 2014 as follows:-

“2. Without prejudice to the contention that the plaintiffs failed to plead the consideration for the alleged written surrender agreement in paragraphs 7(a), 7(b)(ii), 7(c), 7(e)(ii) of the Defence to Amended Counterclaim, and that the defendant does not have to pleaded the lack of such in her pleadings, it is averred that the alleged written surrender agreement was void for lack of consideration.”

7.I make enquiry with the defendant to see if there will be additional evidence to be adduced on this new piece of pleading and the answer from Mr Ho is “No”.

8.I then ask the plaintiffs if there are any prejudice caused by this late proposed amendment which cannot be covered by costs or which may have the effect of derailing the trial dates.

9.In the course of her submission, Ms Cheung said that there might be a need for the plaintiffs to file additional evidence to deal with this point of lacking of consideration in the alleged surrender agreement. 

10.However I note that in the Agreed Statement of Issues in Dispute filed by the parties dated 17 July 2014, the parties have put down in 1(3) and 1(4) which cover the relevant matters concerning the alleged written surrender agreement.  For easy reference, Issues in Disputes 1(3) and 1(4) are as follows:-

“(3) Whether the defendant had at or around early March of 2005 approached the plaintiffs for the signing of a formal written tenancy agreement in respect of the Land and for the surrender of Land B [RADC/§7a/A27];

(4) Whether at a meeting on 10 March 2005 between Woo Hoi Lun, his wife and the defendant at the residence of Woo Hoi Lun at 9 Tin Sum Village, which was evidenced by a sound tape recording, the defendant admitted, inter alia, to be a tenant of the plaintiffs and had been paying rent to the plaintiffs and/or their predecessors-in-title through the Chinese Herbal medicine shop since 1985; and Woo Hoi Lun for himself and the other plaintiffs agreed with the defendant for the signing of the Tenancy Agreement for the Land the unconditional surrender of Land B by the defendant [RADC/§7b/A27]”

11.Clearly the intended evidence to be adduced at trial concerning this meeting in March 2005 has already been put in by both parties. 

12.After double-checking the witness statements already filed by the plaintiffs, Ms Cheung confirms that no supplemental witness statement is necessary to deal with this new point arising from this proposed amendment.  Ms Cheung still urges the court to refuse the application because of lateness.

13.It is a well established principle that the object of the court is to decide the rights of the parties and matters of real controversy. Although here the defendant’s application is late, it does not have the effect of disrupting the preparation of trial as no new evidence will be adduced, no further discovery will be necessitated. 

14.In the present case, I can see no real and/or material prejudice being caused to the plaintiffs if I allow the proposed amendment other than costs.  Hence I exercise my discretion to grant leave to this application so that parties can then focus on preparation of the forthcoming trial in August 2014.  For the above reasons, I order:-

(1) Leave be granted to the defendant to file and serve the Reply to Defence to Amended Counterclaim as per the draft attached with the Summons within 14 days from the date of this Order.

(2) The costs of this application be to the plaintiffs and summarily assessed at HK$1,500 to be payable by the defendant forthwith.

Ms H Cheung, of Alfred Lam Keung & Ko, for the plaintiffs

Mr Fred Ho, of Cheung & Choy, for the defendant