WONG KWOK WA v. HO SUK YAN

DCCJ 1777/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1777 OF 2012

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DECISION

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Introduction

1.  By his summons (“the summons”) dated 21 May 2014, the plaintiff sought leave to file and serve his supplemental witness statement.

2.   On 9 June 2014, I dismissed the plaintiff’s application and indicated that I would give my reasons for decision shortly, which I now do.

Procedural history

3.   The following brief history of the proceedings is relevant :-

4.   The plaintiff filed his witness statement on 31 January 2013.  Judgment on liability was entered by consent on 20 December 2013.

5.   Both before and after Judgment on liability was entered, the plaintiff had filed 3 LQs.  In his 2^nd and 3^rd LQs, he indicated that he did not intend to take out any other interlocutory applications.

6.   At the directions hearing on 20 February 2014, the trial on quantum was fixed to be held on 12 and 13 June 2014.  The trial is due to commence 3 days later.

7.   By any standard, the plaintiff’s application is a very late application.

8.   At the time of the filing of the summons, no affidavit was filed in support of the application.  At the call-over hearing of the summons, Master Yip directed that the plaintiff should file his supporting affidavit on or before 28 May 2014.  However, the plaintiff only filed the same on 29 May 2014.

9.   Mr Chow, counsel appearing for the defendant, took issue on the non-compliance of the court’s directions.  Legal practitioners have a duty to comply with the court’s directions.  They should not take it for granted that non-compliance would be condoned by the court.  In this case, the plaintiff’s legal representative offered no explanation for the non-compliance except that it was due to their oversight.  That can hardly be an acceptable explanation.  I do not see it right to condone the plaintiff’ non-compliance.  I therefore did not allow the plaintiff to rely to the supporting affirmation of Ip Ying Chuen filed on 29 May 2014.

10.   As a consequence, there was no evidence before the court as to the reasons for the lateness of the application.

11.   As pronounced by Deputy High Court Judge Marlene Ng in DBS Bank (Hong Kong) Ltd v Sit Pan Jit, HCA382/2009, 6 February 2014, unreported, in the post-CJR era, “if there is any last minute application, the court expects a full account for the lateness of the application and full justification as to why the application should be entertained at all at such a late stage.  The court expects litigants to give careful and conscientious consideration and attention to the completion of the listing questionnaires before the case is set down for trial to minimise if not totally eradicate late interlocutory applications”.

12.   Here, the plaintiff had time and again indicated in the LQs that he did not intend to take out any other interlocutory applications.  Even at the directions hearing before Registrar R Lai on 20 February 2014, he did not express the need to file a supplemental witness statement.

13.   Paragraph 34 of Practice Direction 5.2 states:-

“... Late interlocutory applications may be dismissed on the basis of delay alone.”

14.   In Luan Gang v Simpson Marine Ltd, HCA107/2011, 2 September 2013, unreported, Hon Ng J held that on the ground of delay alone, the late application of the plaintiff (which was heard 6 days before trial) should be dismissed.

15.   I am satisfied that in the circumstances of this case, the application should be dismissed on the ground of delay alone.

16.   In the supplemental witness statement, the plaintiff stated his personal experience as a village house builder; the fact that he owns and operates a company (恒鋒發展投資有限公司) which was also building a village house on Lot 1195 in DD 167; that how he would have built the 2 village houses at the same time so as to save costs etc.  If the plaintiff is allowed to use those information as part of his evidence, in fairness to the defendant, she should be allowed time to verify the plaintiff’s claim and may even need to enlist the help of expert opinion in rebuttal.  This will inevitably disrupt the scheduled trial dates and is against the underlying objectives of Order 1A rule 1 of the Rules of District Court.

Conclusion and order

17.   For the above reasons, I am bound to dismiss the plaintiff’s application as I did.

Costs

18.   Costs shall follow event.  Mr Chow, counsel for the defendant, asked for indemnity costs.

19.   Although it was a late application, I do not consider it as an affront of the court which would otherwise justify an order of costs on the indemnity basis.

20.   I order the plaintiff do pay the defendant costs of this application with certificate for counsel, to be taxed if not agreed.