JOTZ, KLAUS BERNHARD MARKUS v. MTR CORPORATION LTD

DCCJ 5148/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5148 OF 2007

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D E C I S I O N

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1.  The plaintiff applies to amend the statement of claim. Though the proposed amendments seemed fairly extensive, most of the proposed amendment are within the issues pleaded, for this reason, the defence has not raised objection to parts of the proposed amendments.

2.  The main objection of the defence to the proposed amendment are in paragraphs 10(a) to 10(e), which raised the issue of nuisance caused by the noise and vibration due to the building works of the flats above the plaintiff’s in the second half of 2006 for a period of 5 months.

3.  It is no doubt a new cause of action and, according to the defence, the plaintiff failed to tender sufficient or satisfactory explanation for the delay in raising the new cause of action, since the writ was commenced in November 2007.

4.  The defence’s reasons for objection to the proposed amendment is the delay of the plaintiff in raising the new cause of action three years after the commencement of the action.  Although no trial date has yet been set, it has been years since the timetabling questionnaire was filed, where the plaintiff expressed there was no intention on their part to amend pleadings.

5.  The defence counsel, Mr Dawes, argued that the late amendment is prejudicial to the defence case, since it is not able to locate records of construction work for the relevant period after four years.  Further, the property manager, Mr Luk, had resigned since 2007.

6.  The plaintiff’s counsel, Mr Ah-weng, argued that it was not until 15 March 2010 that the defence filed witness statements after Master Mak imposed an unless order on 25 February 2010.  He argued that the delay, therefore, in these proceedings was not solely on the plaintiff’s side, but also on the defence’s side.

7.  Mr Ah-weng further argued that, in fact, the defendant had been put on notice of the plaintiff’s complaints on noise and vibration nuisance as early as 5 June 2006 through the plaintiff’s letter of complaint, even though the period of complaint alleged in the proposed amendment is the second half of 2006.

8.  There is also a letter dated 21 March 2007 from the plaintiff’s solicitor, complaining about the nuisance of noise and vibration in October 2005 to February 2006.

9.  From the documents filed, it is clearly set out in the plaintiff’s witness statement dated 13 July 2008, paragraphs 8 and 9, the plaintiff’s complaint of excessive noise from the construction work conducted at Flats 63A and H and 65A and H, this can be seen at page 23 of the bundle.

10.  It is, therefore, clear to the defence the plaintiff was complaining about excessive noise and disruption caused by construction work from Units 63A and H and 65A and H at the end of 2006.  These incidents the plaintiff had also brought to the notice of the police.  He had made a police report at that time.  Thus, the defence must have been put on notice even though the original causes of action in these proceedings since 2007 November did not include the nuisance complained of.

11.  The general principle for the grant of leave to amend, set out in Order 20/8/6, in the Hong Kong Civil Procedure 2011, page 438, provides:

“It is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made ‘for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings’ (see, per Jenkins LJ in G L Baker Limited v Medway Building & Supplies Limited [1958] 1 WLR 1216 at 1231).

It is a well-established principle that the object of the Court is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. ... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party.  Courts do not exist for the sake of principle or the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace. ... It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right.”

12.  In the next page, 439:

“In Tildesley v Harper, Bramwell LJ said, ‘My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder, he had done some injury to his opponent which could not be compensated by costs or otherwise. However negligent or careless may have been the first omission and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs.’”

13.  At page 442 of the Hong Kong White Book, Order 20/8/9, the notes said, from the 6th line down:

“As a general rule, however late the amendment is sought to be made, it should be allowed if it will not do the opponent party some injury or prejudice him in some way that cannot be compensated for by costs or otherwise.”

14.  It is clear that the cardinal principle is the amendment will be allowed if it does not cause injustice to the other side or is something that cannot be compensated for by costs.

15.  In the present case, the limitation period for the plaintiff to raise new causes of action is not yet closed.  The defendant has the burden to show strong injustice or injury if the amendment is allowed, or the plaintiff has a right to amend the statement of claim, so long as the defendant can be compensated by costs.

16.  After careful consideration of the plaintiff’s proposed amendment and the documents referred to such as the letters and the witness statement of the plaintiff, and careful consideration of the defendant’s supporting affidavit on prejudice, the fact that there may be staff who had resigned, the fact that there may be incomplete record after 3 years, for an organisation such as the defendant, a public organisation with sound management, with professional staff, it should not be difficult for the defendant to retrieve relevant documents on incidents of complaints raised 3 or 4 years ago and obtain the assistance of a former staff or staffs who have been serving since 2005/2006 and who are still employed by the building management of the estate where the plaintiff’s property is situated.

17.  I am not convinced that the prejudice raised by the defence is insurmountable.  The amendment may possibly cause inconvenience to the defence, but I am sure the defence should be able to overcome these inconveniences.

18.  For the aforesaid reasons, I allow the application, with costs against the plaintiff, to be taxed if not agreed, with certificate for counsel.