Technoway Ltd. v. Penmack Holdings Ltd. and Another
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CACV000183/1990
Headnote Plaintiffs initially pursued a claim for specific performance of a tenancy agreement. The Master allowed an amendment abandoning this claim pleading repudiation and acceptance. This order was set aside by a judge and from this decision appeal was brought. The amendment on its face did not plead acceptance. Submitted (1) that a failure specifically to plead acceptance did no more than leave plaintiffs open to a request for particulars; (2) alternatively that acceptance could, in the circumstances, be left to the perception of the defendant; (3) that, if required, an application to amend pleading acceptance should be allowed. Held: Court refused application to amend as it considered matter must be dealt with on basis of the pleading as it stood before Master and the Judge. Acceptance cannot be left to the perception of a party. He is entitled to know with exactness what is alleged. The amendment as formulated being useless the appeal was dismissed.
BETWEEN
---------------------- Coram: Hon. Fuad, V.-P., Power & Penlington, JJ.A. Date of Hearing: 22 January 1991 Date of Handing Down Judgment: 27 March 1991 ------------------ JUDGMENT ------------------ Power, J.A.: 1. This is the judgment of the Court. 2. This is an appeal by Technoway Ltd. (Technoway) against the order of Nazereth J. setting aside the order of Master O'Donnell which gave leave to Technoway to amend its Statement of Claim. 3. Technoway's original Statement of Claim naming Penmack as defendant was dated 8th March 1989. It sought specific performance of a tenancy agreement. This Statement of Claim was amended on 13th November 1989 by adding the Hong Kong Chinese bank Ltd. ("HCB") as a second defendant. The claim for specific performance was maintained against Penmack and damages were claimed from HCB. 4. The facts relied on in the Amended Statement of Claim are set out hereunder. 5. On the 10th of November 1986, the Overseas Trust Bank ("OTB") by a tenancy agreement granted a two-year lease of office premises ("the premises") to Technoway from 16th September 1986 to 15th September 1988. 6. On 19th February 1987, OTB assigned its reversion to the Hong Kong Chinese Bank Ltd. (HCB) which in May 1988 agreed in a series of letters to grant a new tenancy to Technoway on the expiry of the original tenancy for the period from 15th September 1988 to 30th September 1990. This was the agreement of which specific performance was sought. 7. On 27th May 1988, HCB entered into a sale and purchase agreement of the property with Penmack Holdings Ltd. ("Penmack") pursuant to which the premises were assigned to Penmack on 25th August 1988. 8. On 6th June 1988, a letter from Bond First Pacific Davies was written on behalf of HCB requiring delivery of vacant possession on 15th September 1988. 9. On 8th June, HCB wrote to Technoway saying that the previous correspondence which, it seems clear, was the "series of letters" referred to above, was subject to contract. 10. On 30th August 1988, Penmack sent Technoway a Notice of Termination. They stated that it would take effect on 15th March 1989. 11. On 15th September 1988, the lease expired. The May tenancy agreement, given that it was valid, would then have commenced. 12. Technoway added HCB as a second defendant on 10th November 1989 upon the basis that its assignee had breached the agreement of May 1988 of which it was seeking specific performance and amended its Statement of Claim accordingly on 13th November 1989. 13. On 3rd October 1990, the Master allowed further amendments to the Statement of Claim which abandoned the claim for specific performance and alleged a repudiation by the defendants and acceptance thereof by the plaintiff. As the Statement of Claim stood prior to this further amendment, paragraph 6 alleged that HCB repudiated by
Paragraph 8 alleged that Penmack repudiated by the letter of 30th August 1988, giving Technoway notice of termination of the tenancy and requiring delivery of vacant possession on 15th March 1989. 14. This further amendment sought by paragraph 11 to allege that the plaintiff accepted the repudiation of "the defendants" by:
On its face, there is no pleading of any acceptance of the alleged repudiation of HCB. 15. The Master having allowed the further amendments, HCB appealed to Nazareth J. against his order. He was satisfied that the appeal should be allowed for the following reasons:
16. At the outset of the hearing before this court it was put to Mr. Yu, who appeared for Technoway, that no acceptance of the alleged repudiation by HCB had been pleaded. He submitted, initially, that the averment in paragraph 11 was a good enough indication of acceptance and that HCB were given notice thereof by service of the further amended Statement of Claim pursuant to the order of Master O'Donnell on 3rd October 1990. He then submitted that the acceptance was communicated even earlier by the issue and service of the inter partes summons on 11th June 1990 whereby it was sought to add HCB as the second defendant and that the failure specifically to plead the acceptance did no more than leave Technoway open to a request for particulars. Upon the basis that acceptance of the repudiation had been pleaded Mr. Yu went on to refer to Johnson v. Agnew and Tilcon Ltd. v, Land & Real Estate Investments Ltd. 17. It seems, in the latter case, that acceptance of the repudiation was communicated by the service of the writ. It is, however, clear from the report, at p. 49, that this was specifically pleaded.Mr. Yu was again asked how the pleading could stand without this. averment. He submitted that given the nature of the pleading, it was a matter which could properly be left to the perception of HCB. he argued finally that this was not a matter which could be raised now as Nazareth J. had not relied upon it and there was no Counter Notice. At the eleventh hour, Mr.Yu sought leave to amend his Statement of Claim by adding an averment that acceptance had been communicated by service of the summons or, alternatively, by service of the reamended Statement of Claim. 18. This application was opposed by Mr. Kwok for the respondent. He submitted that the. amendment sought must be dealt with as formulated and that this was not a striking out application, in which the Court would look to see whether any amendment could properly be made, but an application to amend formulated in specific terms by the appellant as to which, given that it had been pursued without alteration to those terms, both before the Master and Nazareth J., it would be wrong to allow any amendment. 19. We dismissed Mr. Yu's application indicating that we considered that it would be wrong for us to approach the matter other than upon the basis of the pleading as it stood before the Master and Nazereth J. 20. Mr. Kwok addressing us upon the appeal submitted that Technoway had affirmed the contract by staying on for 15 months and, while seeking to rely upon the reasoning of Nazareth J. in this regard, went on to inform us that both before the Master and the Judge it had been his submission that the amendments as formulated were useless as no acceptance of the alleged repudiation was pleaded. He conceded that there should have been a Counter Notice and sought leave to file one in the following terms:
The court granted this application. 21. We are satisfied that acceptance of a repudiation must be pleaded and that there was no acceptance by HCB pleaded in the further amended Statement of Claim. Such matters cannot be left to the perception of a party. He is entitled to know with exactness what is alleged against him. The amendment as formulated was, therefore, useless. Given that we take this view it is not necessary for us to canvass further the other issues that were raised. 22. The appeal is dismissed and. we make an order nisi that the plaintiff is to pay the 2nd defendant's costs of the appeal. Representation: Mr. Benjamin Yu (instructed by Messrs. Szeto & Yeung) for the Plaintiff/Appellant. Mr. Kenneth Kwok (instructed by Messrs. Y.T. Chan & Co. for the 2nd Defendant/Respondent. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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