LI SHIU TO v. LI SHIU TSANG AND OTHERS

HCA 416/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 416 OF 2003

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J U D G M E N T

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1. This is an appeal against two parts of the order of Master Lung, who is the listing master, made on 19 November 2003.

2. The first part is under paragraph 3 of the order whereby he ordered that the plaintiff shall within 7 days take out an application, if so advised, for specific discovery. The second part is under paragraph 4 of the order whereby he ordered that unless the plaintiff file and exchange the witness statements in compliance with the order dated 10 July 2003 by 4:00 p.m. on 23 December 2003, the plaintiff be debarred from adducing the evidence without specific leave of the trial judge; in such events the defendant be at liberty to file and serve their own witness statements.

3. Mr. Chain, for the plaintiff, complains that the master had no jurisdiction to order the plaintiff to take out the application for specific discovery within 7 days. At the hearing before the master, counsel then appearing for the plaintiff indicated to the court that an application for specific discovery would be taken out within 14 days. The master, however, considered that the plaintiff should issue the same within 7 days, if so advised, and he so ordered.

4. No doubt the master had in mind that the purpose of the checklist hearing was to see if the action was ready for setting down for trial and he was concerned with directions to ensure a just, expeditious and economic disposal of the action. Since that time, however, the plaintiff has, in fact, taken out an application by a summons dated 1 December 2003 for specific discovery which summons is returnable tomorrow before a master. This is an application for specific discovery against the 1st defendant. This was taken out later than the 7 days ordered by the master but Mr. Chow, for the 1st defendant, has confirmed that no point of lateness will be taken by the 1st defendant. It seems to me that this part of the appeal is academic. The order for costs made by the master was for costs to be in the cause which was eminently a suitable order to be made on a checklist hearing. In the circumstances, I do not think that it is appropriate for me to determine whether or not the master had jurisdiction to make the order that he did as this part of the appeal is academic. I would dismiss this part of the appeal.

5. The second part of the appeal concerns the 'unless order' made by the master. Mr. Chain submitted that with the application for trial of a preliminary issue pending, the question of the exchange of witness statements on all issues should be deferred. He also submitted that it was wrong in principle for the master to have made an 'unless order' as this was the first default by the plaintiff.

6. The starting point, it seems to me, is the consent order made on the summons for directions. This was the order of Master Ho made on 10 July 2003. This was an order made by consent ordering, inter alia, that the parties shall file and exchange their witness statements as to fact within 60 days from the date thereof, such statements to stand as evidence-in-chief unless the trial judge otherwise directs. I emphasise that this was an order made by consent. The fact that the plaintiff has subsequently changed solicitors and taken out a summons for trial of a preliminary issue does not mean that the parties need not comply with orders of the court.

7. It seems to me, as Mr. Chow submitted, that the plaintiff has made two distinct and separate claims in this action :

(i) for alleged breach of duty on the part of the 1st defendant as administrator of the estate of the deceased to distribute or complete the distribution of the assets referred to in Clause 1(I)(iii) of the 1984 Deed; and

(ii) a claim that 801 shares of the 3rd defendant held in 3 alleged fictitious names belong to the estate of the deceased.

8. The summons for trial of a preliminary issue which is to be heard by a master in February 2004 concerns the 2nd claim only. It follows that the plaintiff's 1st claim against the 1st defendant will have to be proceeded with in any event.

9. Mr. Chain submitted that if witness statements on all issues are exchanged before the determination of the summons for trial of preliminary issue his client will be prejudiced. There is, however, no evidence of prejudice before me and I fail to see how it can be seriously suggested that the plaintiff will be prejudiced by the exchange of witness statements on all issues.

10. The simple fact is that the plaintiff consented to the order for exchange of witness statements. I see no good reason why he should not comply with the consent order. There is no good reason made out why the witness statements on all issues should not be exchanged as ordered. There is no reason why the resolution of the claim in respect of which the preliminary issue does not deal with should be any further delayed. The point is made that the parties are at an advanced age and the relevant transactions took place a long time ago.

11. I am not persuaded that the master was wrong in principle to make the 'unless order' in the light of the fact that there was a consent order and that there has been delay in complying with the order. However, I would have been prepared myself to have given the plaintiff a final chance to exchange witness statements and would have been prepared to extend the time for so doing before making an 'unless order'. As this is an appeal by way of re-hearing, I set aside the 'unless order' of the master but would instead give an extension of time for the exchange of witness statements and as to the period of time, I will hear counsel on that.