WONG KING FONG v. WONG KAM TO

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JUDGMENT

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Kempster, J.A.:

1. On the 5th of March of this year the plaintiff, Madam WONG King-fong, commenced proceedings against the defendant, WONG Kam-to, in Fanling District Court claiming possession of a stall in the Market Place at Fairview Park, Yuen Long, said to have been let for business purposes only, together with mesne profits and a management fee. The tenancy was alleged duly to have been brought to an end by Notice of Termination dated let August 1983.

2. The Defence was served on 20th March 1984 and, subject to production of the plaintiff's documents, admitted that she was mediately entitled to possession of the stall in question. Paragraph 3 of the pleading alleged a partnership between the parties whereby the defendant was to hold the stall on behalf of the firm. The allied admission of a rent payable by the defendant to the plaintiff marched somewhat uneasily with this allegation of partnership. A subsequent denial of a tenancy was, however, more consistent with that plea if not with a liability for rent. Its overall purport was obscure.

3. On 17th July 1984 a Consent Order was made for the payment of arrears of rent or mesne profits and for continued payments of such monies. Then on 14th August, following an exchange of letters resulting in greater particularity of the Defence, an application was issued for a complete amendment of that pleading together with the addition of a Counterclaim. Its terms involved a very substantial departure from what had earlier been pleaded.

4. The application came before His Honour Deputy District Judge Tanzer on 20th August; 4 days before the date set for the hearing of the action. He gave the defendant leave to amend his Defence and to add a Counterclaim as sought. The hearing date was vacated. No fresh date for hearing has yet been substituted.

5. By paragraph 1 of the Amended Pleading the defendant withdrew the limited admission earlier made as to the plaintiff's title and a subsequent paragraph denied any sub-tenancy. The jurisdiction of the District Court in relation to the claim was challenged though, we are told, that plea no longer holds good. The defendant claimed that there had been an agreement for the sale to him by the plaintiff of her live-chicken hawking business and that the terms of that agreement, which are quite complicated, precluded the relief sought by the plaintiff. In turn the defendant counterclaimed for a declaration, among other things, as to this alleged agreement and for damages for deceit.

6. Against the judge's Order the plaintiff appeals with his leave. It is not suggested that the, plaintiff has not been given time to consider the defendant's change of front but it is urged upon this court that some full and careful explanation should have been given for it; by analogy with the facts in Hollis v. Burton⁽¹⁾. We would hasten to say that we consider the facts and circumstances of that authority wholly different from those presented to the learned Deputy Judge on 20th August last.

7. One party cannot hold an opposing party to his pleading merely because it is to his advantage. It is, however, clearly apparent to us that having regard to the drastic amendment the plaintiff will be in a most advantageous position to cross-examine the defendant if and when he gives evidence on oath or affirmation. As to the substance and gravamen of the appeal which was, necessarily, that the learned judge had exercised his undoubted discretion on the wrong principles all that could be advanced was that no explanation had been given him and that when he expressed his view orally he said (and no objection has been raised to the note of solicitors instructing Mr. Eddis, who appears for the appellant) "the' trial of the issues is paramount. " That suggests to us that the learned judge considered that it was appropriate for a party, even at a late stage, to seek properly to set out his real case.

8. In circumstances where the learned judge has not been asked, as he might well have been, to give written reasons as to the way in which he exercised his discretion we are not disposed to find, again as invited, that he must have failed to exercise his discretion on proper principles.

9. We consider not merely that the appellant has failed to demonstrate that the learned judge erred but that the exercise of his discretion, allowing as it did full opportunity for the plaintiff to reconsider the change of attitude of the defendant, was perfectly proper. We would s dismiss this appeal.

(1)    [1892] 3 Ch. 226