LAM SIU HAY v. CHELEX LTD

HCA 1612/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1612 OF 2010

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BETWEEN

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R U L I N G

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1.  This is an application by the defendant to amend the Amended Defence and Counterclaim. It is to put in an alternative plea of affirmation of tenancy agreement by the plaintiff after the plaintiff has become aware of the defendant’s alleged misrepresentations.

2.  The plaintiff’s claim is based on alleged misrepresentations that the defendant’s workshop could be used for running a canteen.  The plaintiff alleged that he entered into the tenancy agreement with the defendant in reliance of the misrepresentations.

3.  The defendant denies the allegations.  The defendant’s case is that the plaintiff knew that an application had to be made to the District Land Officer (“DLO”) for waiver of a restriction in the grant of the lot before the workshop could be used for running a canteen.

4.  The defendant has already pleaded in paragraph 8(1) of the Amended Defence and Counterclaim that the plaintiff had in around May 2010 requested the defendant for assistance to make the application for waiver to the DLO.

5.  The plaintiff in paragraph 11 of the Reply and Defence to Counterclaim denied that he had made the alleged request for assistance.  The plaintiff further pleaded in the alternative that the alleged request was irrelevant for consideration of the defendant’s liability to him.

6.  One Mr Lin Lam Cheong, the person in control of the defendant, made a witness payment for the defendant.  He said in paragraph 52 that after the plaintiff had left the premises and made the claim against the defendant, he then learnt of the correspondence between the plaintiff’s decoration consultant and the DLO on an application to the DLO for waiver.  The correspondence was exchanged in July and August 2010.

7.  The matter of affirmation of the tendency agreement was first canvassed at the PTR on 5 June 2012 by reference to paragraph 52 of Mr Lin’s witness statement.  The defendant now wants to put in an alternative plea of affirmation of the tendency agreement in the Amended Defence.  The defendant also proposed that the plaintiff should amend the Reply and Defence to Counterclaim in response by 24 August.  The defendant’s summons for this amendment was issued on 7 August.

8.  The plaintiff opposed this application.  His solicitor, Mr Yeung Hon Ming has made an affirmation in support of the opposition.

9.  Mr Yeung said the application prejudiced the plaintiff as the plaintiff was often on business in the mainland and would require notice in advance for any appointment.  Mr Yeung seemed to suggest that he was not already in touch with the plaintiff on this application since the receipt of the defendant’s summons on 7 August.  I put little weight on this argument.

10.  In any case, the facts relied upon by the defendant in making this plea of affirmation are not new.  They have been referred to in the existing pleadings of both sides and Mr Lin’s witness statement.  The defendant has also produced and issued a hearsay notice for all the correspondence in its possession.

11.  The second ground of prejudice is the plaintiff’s need for information from his decoration consultant.  Mr Yeung says that there is insufficient time for such purpose and also for the legal advice to follow and the re-amendment to the Re-amended Defence and Counterclaim.  He said that the usual time for all these is a 28-day period.  Since the trial will start on 4 September, there will be insufficient time for this issue to be properly dealt with by the plaintiff.

12.  I disagree.  The facts in question are not new. The issue is also a very narrow and straightforward one.  I do not see why the plaintiff will not be able to come up with an Amended Reply and Defence to Counterclaim by 24 August.

13.  Furthermore, the plaintiff’s decoration consultant has been subpoenaed to produce all relevant documents on 20 or 21 August.

14.  The plaintiff’s counsel also submitted that there is inconsistency between the latest witness statement of Mr Lin and the proposed amendment.  The witness statement says that the plaintiff requested the defendant’s assistance to apply to the DLO for waiver.  The proposed amendment says that the plaintiff has instructed its decoration consultant to procure the defendant to sign papers including the defendant’s authorisation for the consultant to apply for the waiver.  I think the question of whether there is only a difference of expression or indeed inconsistency should be left for resolution at the trial.

15.  There are also other less important arguments like the availability of the evidence of the plaintiff’s decoration consultant. I just repeat that the consultant will attend the trial on subpoena and such argument has litter merit. 

16.  I therefore allow the defendant’s summons to amend.  I also allow the defendant to put in the supplemental witness statement of Mr Lin.  I also allow the plaintiff to make consequential amendments to his Amended Reply and Defence to Counterclaim to be filed and served on or before 24 August 2012.  I also make amendments to the dates contained in my direction given on 5 June this year as suggested in paragraph 4 of the summons. 

17.  On the whole, I make an order in terms of the summons.  But on the question of costs, bearing in mind the defendant’s success in the argument, I would have ordered the costs against the plaintiff for the argument.  However in the light of the lateness of the defendant’s application to put in this amendment, although not too late to warrant its defeat, I would express the court’s disapproval by making no order as to the costs for today’s argument.