WONG KWAN YEE v. THE INCORPORTED OWNERS OF DIAMOND MANSION (NOS. 466-468, LOCKHART ROAD) AND ANOTHER

HCA 2576/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2576 OF 2007

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REASONS  FOR  DECISION

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Introduction

1.  This “Reasons for Decision” concerns the plaintiff’s application to strike out the highlighted part of para. 10A, re-re-re-re-amended defence.  The relevant part reads:-

“Para. 26A [of the re-re-re-re-re-re-amended statement of claim] is denied.  The Defendants aver that the installation of the Opening by the Plaintiff or her tenant or their agents by breaking the wall dividing the Property and the common corridor is in breach of the DMC. … ” (highlight supplied).

The highlighted part will be called “the subject averment” below.

2.  At the end of the hearing on 8 December 2009, the application was dismissed with costs.  Below are the reasons.

3.  This action can be summarized as follows.  The plaintiff is the owner of the suit property, a shop unit and a mezzanine unit located in a building with a residential portion on the upper floors and a commercial portion underneath it.

4.  This action, commenced in 2007, focuses on an opening on the one side of which is the plaintiff’s mezzanine unit and on the other is the common corridor.

5.  The main dispute in this action is whether the said opening was made at the time when the building was constructed (the plaintiff’s case), or only made subsequently (the defendants’ case).

6.  The plaintiff put forth 4 grounds in support of this application:-

(a)     the defence has no evidence which can possibly prove the subject averment;

(b)    the subject averment is irrelevant to this action;

(c)     the subject averment is embarrassing;

(d)    the subject averment lacks the necessary particulars.

Adequacy of Supporting Evidence

7.  The evidence relied upon by the defence in support of the subject averment is contained in para. 7 of the supplemental witness statement of a Mr Lai, whose family members live in a unit in the building.  Mr Lai said:-

“本人不能記憶起現在雙方爭議的地方是誰由牆改成門的，亦不能準確地記起這工程是什麼時候進行的。 … 原告人聲稱她是於1966年已佔用 …地舖及閣樓，直至購入該單位，以至將單位租出，直到現在，而於本人於1971年入住本人的單位時，現在爭議的地方的仍然是一度牆，所以本人肯定這度牆是由原告人或她的租客或他們的代理人將之改成門口的”.

The plaintiff occupied the suit property since 1966 as a tenant.  She purchased it in 1978 (while still in occupation) and let it out in 1980 until today.

8.  The plaintiff fairly accepted at the hearing the above witness statement should be treated as truthful and reliable for the purpose of this application.

9.  The plaintiff is correct to contend it is not for a witness to perform the fact-finding function for the court.  However, from the primary facts given by Mr Lai, it is difficult to see what other conclusion can be drawn than the one stated in his supplemental witness statement.

10.  For this reason, I do not accept the plaintiff’s contention.

Relevance

11.  The plaintiff argued that the defence itself accepts the subject averment is irrelevant.

12.  The defence written submissions read:-

“… [the plaintiff] asked for the identity of the person who carried out the job … [The defence] is unable to provide the requested particular.  In any event, the requested particular is irrelevant as it makes no difference whether it was contractor A or contractor B who actually carried out the job; as they would be the agents of either [the plaintiff] or her tenant … ” (emphasis supplied) (para. 17);

“… it is clear … the Opening was installed during the occupancy of [the plaintiff] or her tenant. … it is apparent that [the plaintiff] wanted [the defence] to provide the exact date [on] which the works were carried out.  [The defence] is unable to provide the requested particular.  The particular sought is irrelevant as any date within the occupancy of [the plaintiff] or her tenant would have the same effect on whether there was any breach of the DMC” (emphasis supplied) (para. 18).

13.  The defence is only saying this: while the subject averment is relevant, it is irrelevant to their case precisely who made the said opening, or precisely when it was made.  But it is obvious the defence wishes to establish that the said opening was made during the period of the plaintiff’s occupancy (directly or through her tenant).  This is for the purpose of showing that the said opening could not have been made in the way the plaintiff claims it was made.

14.  The essence of plaintiff’s case is based in gist on two matters:-

(1)     a plan which shows the said opening;

(2)     the plaintiff’s testimony.

15.  In a sense, it is true the defence needs only deny the above case and put the plaintiff to proof of her case.  But the law does not forbid the defence, in an appropriate case, to also put forth a positive case in response.  In fact, such course is not uncommon in civil litigation.  In this action, it is appropriate for the defence to call its own witness in an attempt to refute the plaintiff’s testimony.

16.  Thus, I disagree with the plaintiff’s argument.

Embarrassing Averment

17.  The meaning of para. 10A (including the subject averment) should be clear:-

(a)     in the context of the issues raised by the pleadings herein;

(b)    when read together with para. 7 of Mr Lai’s supplemental witness statement.

18.  I therefore do not agree the subject averment is embarrassing.

Further and Better Particulars

19.  The particulars in question have been summarized in para. 12 above.

20.  Irrespective of whether the plaintiff is correct that the particulars given are inadequate, it is trite law mere lack of particulars is not a good reason for striking out a pleading: Hong Kong Civil Procedure 2010, Vol. 1, para. 18/19/9 (p. 398) citing Kemsley v. Foot [1952] AC 345 and IO of Kwun Tong Industrial Centre v. Fels Construction Techniques Ltd., HCCT 101/2002 (14 March 2002).

21.  Hence, this is not a valid reason for striking out the subject averment.