YEUNG SHUN YAN KIMBERLEY AND ANOTHER v. LAM YUET CHUNG RAYMOND AND OTHERS

DCCJ 4939/2018

[2024] HKDC 1692

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4939 OF 2018

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DECISION

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Introduction

1.  By Inter Partes Summons filed on 18 July 2024 (“the Summons”), the 1^st Plaintiff by Original Action (“P1”) and 2^nd Plaintiff by Original Action (“P2”) (collectively “Ps”) apply for:

(1)  an order to join the Intended 6^th Defendant (“D6”), the Intended 7^th Defendant (“D7”) and the Intended 8^th Defendant (“D8”) (“the Joinder Application”); and

(2)  leave to amend the Re-Re-Re-Amended Writ of Summons and the Re-Re-Amended Statement of Claim (“the Amendment Application”).

2.  The following affirmations were filed in relation to the Summons:

(1)  Affirmation of Yeung Shun Yan Kimberley (“Yeung”) in support of the Summons;

(2)  3^rd Affirmation of Po Cheuk Ki in opposition to the Summons; and

(3)  2^nd Affirmation of Yeung in reply.

3.  The 5^th Defendant (“D5”) opposed both the Joinder Application and the Amendment Application.

4.  As was indicated in Ps’ Skeleton Submissions dated 30 September 2024 (“Ps’ Skeleton”), Ps withdraw their application to join D6 and the amendments in relation to D6. Ps agree to pay the costs of the withdrawal to D5 in the sum of HK$800. However, the amount is not agreeable to D5.

5.  At the hearing of the Summons, Ps appeared in person. Ms Yeung made submissions on behalf of Ps.

6.  Mr Lee, acting senior government counsel, appeared for D5.

Applicable Principles

7.  The applicable principles are trite and not in dispute.

8.  O 15, r 6(2) of the Rules of the District Court, Cap 336H (“RDC”) provides:

“Subject to the provision of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either on its own motion or on application –

…

(b) order any of the following persons to be added as a party, namely –

(i) any person who ought to have been joined as a party, or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which is the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.”

9.  On joinder, the test is whether there is a bona fide claim and a proper question to be tried as between the plaintiff and the intended defendant that is necessary or just and convenient for resolution between them as well as between the plaintiff and the defendants in the present proceedings. See Hong Kong Civil Procedure 2024, Vol 1, §15/6/1 at p410 citing Pang Kwok Lam v Schneider Electric Asia Pacific Ltd (unrep) HCPI 90/2010, 5 January 2011 and Wong Ieok Hei v Dr Kwok Kwan Ho (unrep) HCPI 22/2012, 5 September 2014.

10.  Furthermore, the court will not give leave for joinder of parties where to do so increase rather than prevent a multiplicity of contested proceedings or where they would expand the limited scope of the original action. See Hong Kong Civil Procedure 2024, Vol 1, §15/6/1 at p 410 citing Kwan Chi On v Hong Kong Baptist University & Anor [1998] 1 HKC 88 and Chong Kai Man v Kwan Yau Hong (unrep) HCA 1298/2011, 30 September 2013.

11.  Thus where the addition of the party will have the effect of adding a new cause of action, the order will be refused. The words cause or matter in O 15, r 6 means the action as it stands between the existing parties. See Hong Kong Civil Procedure 2024, Vol 1, §15/6/6 at p 415.

12.  As for amendment of pleadings, O 20, r 8(1) of RDC provides:

“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 proceeding, the Court may at any stage of the proceedings… order a pleading to be amended on such terms as to costs or otherwise as may be just and in such manner (if any it may direct)”.

13.  However, the court shall not order a pleading to be amended unless it is of the opinion it is necessary either for disposing fairly of the cause or matter or for saving costs: see O 20, r 8(1A) of RDC.

14.  Furthermore, there is a clear difference between allowing amendments to clarify issues in dispute and those that provide for a distinct claim or defence to be raised for the first time: see Hong Kong Civil Procedure 2024, Vol 1, §20/8/6 at p 596.

Ps’ pleaded case in the Re-Re-Amended Statement of Claim

15.  P2 is one of the registered owner of Section D of Lot No 1575 in DD 3 Lamma Island, New Territories (“Section D”) and the sole registered owner of Section E of Lot No 1575 in DD 3, Lamma Island, New Territories (“Section E”).

16.  P1 is also one of the registered owner of Section D.

17.  Section D and Section E are defined as the Disputed Land.

18.  No 43 Yung Shue Wan Back Street (“GLL”) partly falls within Section D.

19.  D5 granted a licence on GLL to Lam Wah. The 1^st Defendant (“D1”) and 4^th Defendant (“D4”) are the children of Lam Wah who allowed the 2^nd Defendant (“D2”) to occupy and possess GLL.

20.  The 3^rd Defendant (“D3”) is all occupier(s) of the Disputed Land.

21.  Ps claim that D1, D2, D3 and D4 have trespassed the Disputed Lands by:

(1)  Erecting or placing or allowing a portion of a structure which is part of GLL on Section D;

(2)  Erecting, placing or allowing a metal staircase on Section E; and

(3)  By allowing, occupying and/or possessing the southern part of GLL on Section D.

22.  Ps further claim that D5 has trespassed on the Disputed Land by:

(1)  Occupying and/or possessing the southern part of GLL on Section D;

(2)  Permitting and/or allowing D1, D2, D3 and/or D4 to use, occupy and/or possess the southern part of the GLL on Section D;

(3)  Granting, endorsing and/or permitting the southern part of GLL on Section D;

(4)  Collecting and/or receiving annual fees of the southern part of the GLL on Section D; and

(5)  Permitting, possessing and/or allowing a metal staircase on Section E that is attached to the structure of the GLL.

23.  Ps suffered loss and damage as a result of Ds’ trespass. Ps seek vacant possession of Section D and Section E, damages and costs.

The proposed amendments by Ps and reasons for joinder and amendment

24.  The material amendments which are proposed and pursued are as follows:

(1)  P2 is the registered owner of Section C of Lot No.1575 in DD3 Lamma Island, New Territories (Section C”) and the Remaining Portion of Lot No. 1575 in DD3 Lamma Island, New Territories (“RP”);

(2)  D7 is all occupier(s) of Section C;

(3)  D8 is all occupier(s) of RP;

(4)  D7 has trespassed Section C;

(5)  D8 has trespassed RP;

(6)  As a result of D7 and D8’s trespasses, P2 has suffered loss and damages; and

(7)  P2 claims an order for vacant possession of Section C and RP, damages, further and other relief, interest and costs against D7 and D8 respectively.

25.  In the Affirmation of Yeung and Ps’ Skeleton, the reason for the Joinder Application and Amendment Application was that Master YH Chan (“the Master”) had on 3 July 2024 granted leave for D5 to amend the Re-Amended Defence and Counterclaim of D5 (“RADCC”) and found that Section C and RP were relevant to this case.

26.  In particular, paragraph 2(12) of RADCC pleaded the following:

“In fact, the purported Section C and the alleged Section D were outside the true northern boundary of the true Sections C, D, E and the Remaining Portion of Lot 1575 (as delineated by the outer edge of the northern physical boundary of the Low Stone Wall) (“True Northern Boundary”). As for the alleged Section E and the purported Remaining Portion of Lot 1575, parts of the same were within the True Northern Boundary, whereas the remaining parts of the same lie outside the True Northern Boundary, as shown on Annex V herein. It is not feasible for the Government to re-establish the true Sections D and E of Lot 1575 as the manner of subdivision of lot (if any) is at the liberty of the lot owner.”

27.  Essentially, Ms Yeung submitted that because there is in dispute the land boundary of Section C, Section D, Section E and RP, as owners, Ps need to join all occupiers of those sections as the land boundary affects those occupiers. It was further submitted that there is a bona fide claim and proper question to be tried between Ps and D7 and D8 that is necessary or just to have the resolution between them as well as between Ps and the other defendants. If the Joinder Application is not permitted, Ps will have to institute separate action against D7 and D8 and seek consolidation which would be cause duplicity, waste of costs and court resources.

Discussion

28.  The Joinder Application is premised on a dispute of the land boundary of Section C, Section D, Section E and RP, in particular as raised by paragraph 2(12) of RADCC.

29.  However, on my reading of the parties’ pleadings as a whole including the relief sought in RADCC, and as confirmed by Mr Lee at the hearing, there is only a dispute as to whether Ps are entitled to any interest in or right over any or any part of Section D and Section E lying outside the outer edge of the northern physical boundary of the Low Stone Wall.

30.  As to the averments concerning Section C and RP in paragraph 2(12) of RADCC, it seems to me that because it is pleaded in the main part of paragraph 2 that Lot 1575 was purportedly carved out into Sections A to E and RP and the sub-paragraphs provide particulars of the history and land actions relating to the whole lot, Section C and RP were mentioned for completeness.

31.  Whilst Ms Yeung further submitted that at the hearing before the Master, counsel for D5 (who was not Mr Lee) submitted that D5’s defence will concern the true boundary of Sections C, D, E and RP and these sections had to be looked at as a whole, as I also explained to Ms Yeung, what issues are raised and has to be decided at trial is determined by the pleadings and not by the submissions of the parties’ legal representatives.

32.  The same goes with evidence filed by the parties. It is now trite that issues are defined by the pleadings and not by the evidence.

33.  Given there is no dispute raised on the pleadings concerning the boundary of Section C and RP, I cannot see on what basis should the occupiers of Section C and RP be joined. They are not necessary parties to enable the dispute concerning the alleged trespass on Sections D and E to be effectually and completely determined and adjudicated upon. There is no suggestion by Ps that D7 and/or D8 has/have any interest in the boundary of Section D and RP. Therefore I am of the view that the first limb of O 15, r 6(2)(b) of RDC is not satisfied.

34.  As for the proposed claim of trespass on Section C and RP against D7 and D8 respectively, I cannot see how there is a question or issue between Ps and D7 and D8 arising out of or relating to or connected with the relief sought by Ps in respect of Section D and Section E. Moreover, even if there was any such relation or connection, I am not satisfied that it would be just and convenient to determine them as between Ps and D7 and D8 as well as between Ps and D1 to D5. There is no suggestion that any of D1 to D5 had trespassed on Section C and RP. There is also no suggestion there are any common issues raised in the proposed claim and the existing proceedings. On the other hand, there would be further costs and expenses as well as delay caused to these proceedings by expanding the scope of the present proceedings to raise new claims of trespass against additional defendants. For all these reasons, I take the view that the second limb of O 15, r 6(2)(b) of RDC is also not satisfied.

35.  I would therefore dismiss the Joinder Application.

36.  As the Application Amendment is premised on the Joinder Application, this should also be dismissed. In any event, it is plain that the proposed amendments to include D7 and D8 and the proposed claim of trespass against them do not clarify the real issues in dispute in the present action but rather raise a claim against D7 and D8 for the first time.

Disposition and Costs

37.  Accordingly, I will dismiss the Summons.

38.  I see no reason why costs should not follow the event. Ps should pay to D5 the costs of the Summons.

39.  Given the lateness of withdrawal by Ps against D6, I am satisfied that D5 had already incurred the costs to respond to the Joinder Application and Amendment Application as originally sought in the Summons. However, there was some saving of time in the hearing of the Summons which is reflected in the costs.

40.  It is appropriate for D5’s costs to be summarily assessed. Having considered D5’s Statement of Costs submitted to me at the hearing and Ms Yeung’s objections, I accept that the time claimed for the professional work appears on the high side. Adopting a broad-brush approach, I have summarily assessed P’s costs of the Summons at HK$50,000.