Axa China Region Insurance Co Ltd v. Leong Fong Cheng

HCA 1516/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1516 OF 2013

_________________________

BETWEEN

_________________________

_____________

D E C I S I O N

_____________

THE APPLICATION

1.The Plaintiff applied for leave to amend the Reply and Defence to Counterclaim by way of a summons filed on 9 March 2015 (the “Summons”).  The draft Amended Reply and Defence to Counterclaim is attached to the Summons. 

2.The defendant, acting in person, opposes this application.

THE FACTUAL BACKGROUND

3.The plaintiff had terminated the “manager’s contract” with the defendant and claimed against the defendant the career bonus and the monthly transition benefit given by the plaintiff to the defendant under the manager’s contract.

4.The defendant says that she is not liable to the plaintiff for the money paid to her and that she was wrongfully dismissed by the plaintiff and she counterclaims for damages against the plaintiff.

DISCUSSION

5.The plaintiff’s proposed amendment to the Reply is to add an alternative remedy to the plaintiff if the plaintiff is found to have repudiated the manager’s contract.

6.It is well established that, generally speaking, all such amendments ought to be made for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings.  Leave is readily granted to amend before the trial unless it can be demonstrated that the new claim based on the proposed amendment is bound to fail Natamon Protpakorn v Citibank N.A. C.A. [2009] 1 HKLRD 455, adopted by the Court of Appeal in Zheng Chulin v Wo Kee Hong Kong Ind Ltd (unreported, CACV56/2012, 12 June 2012 per Kwan JA at §16).

7.The defendant has not been able to raise any valid argument in opposition to the plaintiff’s proposed amendments to the Reply.  She further confirms today that she has no objection to the proposed amendments.

8.The application is allowed.

COSTS AND ORDER

9.The costs of this application (including all costs reserved for this application) should follow the event and be assessed under O.62, r.9A at $5,000 to be paid by the defendant to the plaintiff within 14 days from the date hereof.

CASE MANAGEMENT CONFERENCE

10.I shall, having heard the submissions from the respective parties, now make the following directions:

a. Leave to the plaintiff to set down within 60 days for a 4-day trial before a bilingual judge alone in the fixture list in consultation with counsel’s diaries.  There be a pre-trial review before the trial judge for 30 minutes on a date 12 weeks before trial.  Parties shall raise the issues of recusal of the trial judge, or related proceedings or actions, if any, and shall confirm the length of the trial by counsel in charge at the pre-trial review.  At the setting down plaintiff shall confirm in writing that there are no outstanding interlocutory applications.  Before the pre-trial review, all interlocutory applications shall be listed to be heard by a Master or the Registrar.

b. The defendant has indicated that she will consider instructing a firm of solicitors to act for her.  The defendant shall endeavour to make the attempt accordingly, and in any event, within 28 days from the date hereof.

c. The costs of this Case Management Conference (30 minutes) be in the cause.

Mr R. Chung, of Kennedys, for the plaintiff

The defendant appeared in person