SUPER DYNAMIC INTERNATIONAL LTD v. CHENG WING YAN

HCA961/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.961 OF 2002

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REASONS FOR JUDGMENT

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1. The defendant appealed against the order of Master S. Kwang dated 13 June 2003. I dismissed the appeal, with costs to the plaintiff in any event. I now give reasons.

2. The plaintiff claims that the defendant, who was its sales manager, converted payments for sales which were due to it, in breach of his fiduciary duty. The defendant denies this, and counterclaims for commission on the sales.

3. The action was commenced by Writ dated 11 March 2002. The plaintiff on 9 March 2002 applied ex parte and obtained a Mareva injunction against the defendant disposing of funds in a named bank account. At an inter partes hearing on 15 March 2002, the injunction was varied to include another bank account and continued until further order. In support of the ex parte application the plaintiff filed an affirmation of its managing director, Chan Wai Ming, affirmed on 9 March 2002.

4. Thereafter the action carried on in the normal way. An order for directions was made on 18 December 2002. The plaintiff filed its List of Documents on 2 January 2003 and the defendant filed its List on 10 January 2003.

5. On 9 May 2003, the defendant through solicitors sent to the plaintiff a "Request for Further and Better Particulars of the Affirmation of Chan Wai Ming affirmed on 9 March 2002" in the following terms :

"Under paragraph 7

'....the Defendant would receive a basic salary of HK$20,000 plus a commission of 2% from the gross sale.... '

Request

1.

Please state the amount of the gross sale of the Plaintiff covering the period from 7th September 2000 to 31st March 2002, and by virtue of 0.24 r.l0 of RHC, furnish us with documentary proof including invoices and audited accounts of the Plaintiff covering the period from 7th September 2000 to 31st March 2002.

Under paragraph 8

'The payment of the commission to the Defendant is made with reference to the gross sale amount. . . . . .'

Request

2.

Please state the amount of the gross sale of the Plaintiff covering the period from 7th September 2000 to 31st March 2002, and by virtue of 0.24 r.10 of RHC, furnish us with documentary proof including receipts and audited account of the Plaintiff covering the period from 7th September 2000 to 31st March 2002.

Under paragraph 8

'.....The commission is paid to the Defendant upon actual receipt of payment from the customers.....'

Request

3.

Please state the amount of actual receipt of payment from the customers to the Plaintiff covering the period from 7th September 2000 to 31st March 2002, and by virtue of 0.24 r.10 of RHC, furnish us with documentary proof including receipts and audited account of the Plaintiff covering the period from 7th September 2000 to 31st March 2002."

6. The plaintiff through solicitors refused to give the particulars requested and the defendant applied for an order that the plaintiff serve on the defendant the particulars and the documents requested. This came before the Master, and was dismissed with costs.

7. So far as the request for further and better particulars of the affirmation is concerned, the defendant relies on Order 18, rule 12(3) of the Rules of the High Court which provides :

"3) The Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading, or in any affidavit of his ordered to stand as a pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the Court thinks just."

8. The affirmation is not a pleading, nor was it ordered to stand as a pleading. It is not a statement of the nature of the case on which the plaintiff relies, or if it was for the purposes of the injunction, it has long been superseded by pleadings. Quite simply the affirmation is evidence and there is no basis for ordering further and better particulars of evidence. If it was claimed that the affirmation did not make full and frank disclosure, that was a matter to be aired at the inter partes hearing.

9. The defendant sought production of documents under Order 24, rule 10(1) which provides :

"Any party to a cause or matter shall be entitled at any time to serve a notice on any other party in whose pleadings, affidavits or witness statements served under Order 38, rule 2A, or experts' reports, reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof."

10. It appears that what the defendant wants is documents showing the gross sales of the plaintiff and actual receipt of payment from the customers to the plaintiff for the period from 7 September 2000 to 31 March 2002, to enable him to calculate his counterclaim which he pleads as $1,800,000.00 "subject to final discovery". However the relevant parts of the affirmation do not in terms refer to any such documents.

11. It is said that the plaintiff has not given discovery, or sufficient discovery, of such documents in its List of Documents dated 2 January 2003. That may be so, and I would have thought that under the normal rules of discovery the plaintiff should be under a duty to give such discovery. But it seems to me that the defendant has gone the wrong way about getting it.

12. I respectfully agree with the learned Master that the application was misconceived, and should have been dismissed. Therefore, I refused the appeal against its dismissal.