MAX SURPLUS FINANCE LTD v. YIP YUK CHOR

DCCJ3309/2014

CIVIL ACTION NO 3309 OF 2014

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REASONS FOR DECISION

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1.  This is the hearing of the plaintiff’s summons filed on 15 January 2016 for leave to adduce further witness statements.

2.  The defendant opposes the application.

Background

3.  The plaintiff, a licensed money lender, made a loan of HK$8,000 to the defendant on 10 May 2006, with interest at the monthly rate of 2.83%, i.e. annual rate of 33.9%.

4.  The defendant defaulted payments.

5.  The plaintiff issued a writ in this action on 26 August 2014 claiming for repayment of the loan and interest.  The plaintiff’s pleaded case is that the defendant made partial repayment on three occasions on 22 May 2010, 21 June 2010 and 4 August 2010 in the respective sums of HK$100, HK$100 and HK$200.

6.  The defendant denies that he had ever made any partial repayment as alleged or at all. He pleads in defence that the plaintiff’s claim herein is time-barred.

7.  The case has been set down for a 3-day trial commencing on 21 March 2016.  The defendant argues that allowing the plaintiff’s application to adduce further witness statements will (i) prejudice the defendant and (ii) upset the milestone dates and that trial cannot proceed as scheduled.

The Evidence

8.  The plaintiff has adduced in evidence in this action a witness statement dated 18 June 2015 of Ng King Fan Dominic setting out details of the alleged three partial payments, and that it had engaged a debt collecting agent to chase the defendant for payment after it had checked the records of the outstanding loan in around April 2010.  It has also adduced in evidence some bank records evidencing receipt of the alleged partial payments.

The Further Witness Statements

9.  The plaintiff by this summons seeks leave to adduce a supplemental witness statement from Ng King Fan Dominic and a witness statement from a new witness葉志偉, debt collector who chased the defendant for payment in June 2010.  It is attached to these two witness statements some service payment and bank payment records purportedly in support of the partial payments by the defendant to the  plaintiff in May to June 2010.

Discussion

10.  It is wholly unsatisfactory that this application is made so late at a stage after the case has been set down and fixed for trial.  Discovery of documents and exchange of witness statements have long been completed.

11.  The plaintiff’s solicitor Mr Lam explains that the plaintiff had not exhausted its efforts to search the old records as it had hoped that the case would be settled and not proceed to trial in view of the extremely modest claims.

12.  Such an explanation cannot be an excuse for the late discovery, and is not accepted. Diligent efforts should be made to adhere to the milestone dates.

13.  However the further evidence sought to be adduced relates to matters pleaded and evidence disclosed in the plaintiff’s case.  It does not raise new matters. There is no prejudice to the defendant’s case in allowing in this evidence.

14.  The plaintiff confirms that it would not require an amendment to the Statement of Claim upon adducing the further witness statements.  It has no objection for the defendant to amend the Defence and/or to adduce further evidence in reply upon the plaintiff’s adducing the further witness statements.  I have ascertained with the parties and am satisfied that all these steps can be taken without jeopardising the trial dates fixed.

15.  I see no evidence of bad faith or attempt to overreach by the plaintiff in making this application.  There is no suggestion or evidence that the present application is made mala fides.

16.  Whilst the adherence to goal posts is of importance particularly bearing in mind the underlying objectives of the Civil Justice Reform, there is a need to strike a balance between the timely progress of cases and their proper adjudication.  The principles are well summarised by Sir Thomas Bingham MR in Costellow v Somerset County Council [1993] 1 WLR 256, 263-264 as follows:-

“As so often happens, this problem arises at the intersection of two principles each in itself salutary. The first principle is that the rules of court and associated rules of practice, devised in the public interest to promote the expeditious despatch of litigation, must be observed. The prescribed time limits are not targets to be aimed at or expressions of pious hope but requirements to be met.....

The second principle is that the plaintiff should not in an ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate.....

Neither of these principles is absolute.  If the first principle were rigidly enforced, procedural default would lead to dismissal of actions without any consideration of whether the plaintiff’s default has caused prejudice to the defendant.  But the court’s practice has been to treat the existence of such prejudice as a crucial, and often a decisive, matter.  If the second principle were followed without exception, a well-to-do plaintiff willing and able to meet orders for costs made against him could flout the rules with impunity, confident that he would suffer no penalty unless or until the defendant could demonstrate prejudice....  The resolution of problems such as the present cannot in my view be governed by a single universally applicable rule of thumb.  A rigid, mechanistic approach is inappropriate.”

17.  I consider it just and appropriate in these circumstances to allow the plaintiff’s application. 

Conclusion

18.  I make the following order:-

(i) Leave to  the plaintiff to file and serve a supplemental witness statement of Ng King Fan Dominic and a witness statement of葉志偉 per the drafts attached to the summons within 3 days from today’s date; and

(ii) Leave to the defendant to file and serve an Amended Defence and/or further witness statement(s) in reply (if any) on or before 17 February 2016.

(Discussion on costs)

19.  I further order that the defendant shall have costs of this summons together with the consequential costs (if any) of amending the Defence and/or adducing further witness statement(s) by the defendant.