Soshila Keswani v. Motiram Keswani

DCCJ 579/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 579 OF 2013

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DECISION

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Introduction

1.This case involves dispute between 2 siblings.

Background

2.I start by summarizing the background of this case.  The defendant is the eldest brother of the plaintiff.  Their father owned the ground and 1^st to 5^th floors of a building at 50C Wing Hong Street, Kowloon.  Their father passed away in 1961.  The 1^st to 5^th floors of the building were inherited by their mother.  The plaintiff inherited the ground floor of the building from her father. 

3.Their mother passed away in 2001.  The last will of their mother bequeathed all her properties, including the 1^st to 5^th floors of the building, to her 4 sons, namely the defendant and his 3 brothers.

4.In 2002, the plaintiff, the defendant and their 3 brothers entered into a Deed of Family Arrangement in which it provided that the defendant, as an executor, held the 1^st to 5^th floors of the building as trustee for the benefits of the plaintiff, the defendant and their 3 brothers in equal share.  In other words, the plaintiff had a share in the 1^st to 5^th floors of the building by virtue of the Deed of Family Arrangement.

5.On 15 February 2013, the plaintiff commenced this case against the defendant.

6.Upon close of pleadings and after several interlocutory hearings, directions were given for the parties to file and serve witness statements.

7.On 29 August 2014, the plaintiff filed 7 witness statements.

Application

8.By summons dated 26 January 2015, the defendant applied to strike out all 7 witness statements filed by the plaintiff.  I am now dealing with this summons. 

Discussion

9.Mr Man, counsel for the defendant, submitted that all witness statements filed by the plaintiff are irrelevant and therefore inadmissible.  Further, the witness statement made by Dr Singer was in fact a medical report and should be struck out because the plaintiff did not obtain leave from the court to file expert evidence.

10.According to the statement of claim, the plaintiff’s case started with mentioning the Deed of Family Arrangement in paragraphs 2 and 5.  Then, it averred that the defendant “has not been performed his duty well…… kept all the rental incomes” in paragraph 6, failed to update the vesting assignment upon the death of one of their siblings in paragraph 7, failed to pay the “rental incomes” to the plaintiff in paragraph 8 and failed to properly manage the building in paragraphs 9 and paragraph 11.  The plaintiff therefore claimed against the defendant for the rental income derived from the building in paragraphs 15 to 16.

11.According to the amended defence and counterclaim, the defendant averred that the Deed of Family Arrangement and the consequential vesting assignment are voidable on the ground of misrepresentation or void on the ground of mistake.

12.Therefore, the main gist of the plaintiff’s case was targeting against the defendant’s failure (or breach of duty) in carrying out the Deed of Family Arrangement, particularly the unauthorized keeping of the rental income.  The defence case against the plaintiff was to challenge the validity of the Deed of Family Arrangement by reason of misrepresentation and/or mistake.  In the circumstance, validity of the mother’s will is not an issue of this case.

13.After reading all the witness statements (including the one by Dr Singer) filed by the plaintiff, I find that none of them relates to the issue in this case.

14.In the plaintiff’s own witness statement, apart from mentioning her background, she basically stated that her mother was suffering from psychiatric problems and staying in hospital or in temple from time to time.  She even particularized how her father and mother had quarrelling during their life time and described an episode that her mother had forgotten to pay a fined-ticket.  However, in her witness statement, the plaintiff did not say anything about the Deed of Family Arrangement.  Nothing about the rental income kept by the defendant had been touched upon.

15.Makers of the 5 other witness statements (excluding the one by Dr Singer) filed by the plaintiff were friends or relatives of the plaintiff’s mother.  Their witness statements focus on stating that the plaintiff’s mother was suffering from mental illness.

16.Dr Singer’s statement was clothed as a witness statement but looking at its content, it is in fact a medical report concerning the mental state of the plaintiff’s mother.

17.It is a settled principle that issues are defined by pleadings of the parties, and only evidence relevant to determine such issues is allowed to be put in.  In the Court of Appeal decision in Wing Hang Bank Ltd v Crystal Jet International Ltd [2005] 2 HKC 638 at 647F - G, Lam J has this to say:-

“A pleading must comply with the requirements set out in the Rules of the High Court. One must remember that the parameters of a trial are defined by the pleadings. In an ordinary civil action, generally speaking, an issue that has not been pleaded is not an issue before the court and subject to the exception alluded to by the Court of Final Appeal in Poon Hau Kei v Hsin Chong Construction Co. Ltd [2004] 2 HKC 235, [2004] 2 HKLRD 442, the court should not consider such issue.”

18.In the present case, the exceptions in Poon Hau Kei, namely a party can succeed on a scenario that that party had not pleaded but his opponent had pleaded, are not applicable.

19.In Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 at p 672, Ma CJ said,

“It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced.”

20.All witness statements and Dr Singer’s report filed by the plaintiff did not touch upon any issues raised in the statement of claim or the amended defence and counterclaim.

21.The defendant was not represented.  She submitted that the mental capacity of her mother is an issue and referred to her amended reply and amended defence to counterclaim. In paragraph 5, the plaintiff did aver that her mother was “psychiatric” and therefore “the Mother’s Will was void”.  In paragraph 20, the plaintiff averred “I did not enter into challenging our mother’s Will as I knew our mother had a psychiatric problem”. However, the plaintiff cannot raise a new cause of action in the reply. The relevant part of Hong Kong Civil Procedure 2015, Vol 1, para. 18/3/2 states :-

“However, a plaintiff must not put forward in his reply a new cause of action which is not raised either in the writ or the statement of claim. If the plaintiff after seeing the defence, finds it necessary to rely on a cause of action which has not been raised in the writ or statement of claim, normally the proper way is to amend the writ and the statement of claim. However, in such circumstances, considerations including whether the cause of action has accrued at the time of the writ should be taken into account. An alternative option is to issue a fresh writ and then, where good grounds exist, apply for consolidation or that the two actions be heard together before the same judge.”

22.The plaintiff did not apply for an amendment of the statement of claim yet. Also, there is no proceedings yet to challenge the validity of her mother’s will.  The present issue of trial, subject to any further amendment of the pleading in this case, does not relate to the mental capacity of the mother.

Conclusion

23.In the circumstance, I find all the witness statements and Dr Singer’s report filed by the plaintiff are irrelevant to the issue of this case and are therefore inadmissible.

24.If I only strike out the irrelevant part of the witness statements, only the names, some background information and the relationship between statement makers and plaintiff’s mother would be left.  I therefore decide that all witness statements should be struck out and not to be adduced at the trial. 

25.Further, I also accept Mr Man’s submission that no expert evidence can be adduced unless leave has been obtained. Dr Singer’s report should be struck out in any event.

26.In view of my decision, the plaintiff will have no witness statement left.  She needs to decide if she will apply to file further witness statement(s) in due course.

Costs

27.Costs should follow event.  There be a nisi order that the costs of and occasioned by this summons including this hearing be to the defendant to be taxed if not agreed with certificate for counsel. The cost order nisi will become absolute after 14 days in the absence of any application to vary the same.

The plaintiff  appeared in person

Mr Bernard Man, instructed by Wilkinson & Grist for the defendant