TAO SOH NGUN (also known as LO TO LI KWAN or LO TO LEE KWAN) v. HSBC INTERNATIONAL TRUSTEE LTD

HCA3246/2016 & 355/2018

[2018] HKCFI 1495

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3246 OF 2016 & 355 OF 2018

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R U L I N G

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1.  By Summonses dated 28 May 2018 the plaintiff applies to amend her Statements of Claim and Reply in both actions. I shall now refer to the proposed amendment to the Statement of Claim in High Court Action 3246 of 2016.

2.  Firstly, the proposed amendments at paragraph 30(1A) of the draft Re-re-amended Statement of Claim are not opposed. 

3.  Further, the proposed amendments by deletion at paragraphs 46(3) and 52E are withdrawn and not pursued by the plaintiff. 

4.  The remaining applications for amendments to the Statement of Claim and the Reply are opposed by the defendant.

5.  In considering that, as reminded by Mr Man, I should take into account the following legal propositions:

(1)  The court would allow amendments made for the purpose of determining the real question in controversy;

(2)  The later the stage the more scrutiny the application will be subject to;

(3)  There is also a clear difference between allowing amendments to clarify the issue in dispute and those that set out a new claim or defence for the first time; and

(4)  It is sufficient for the pleader to state the material facts, he need not state the legal result.

6.  Of course, I further bear in mind the guidance given at Order 1A, rule 2(2) of the Rules of the High Court, which provides that:

“In giving effect to the underlying objectives of these rules...”

Referring to the Rules of the High Court,

“...the court shall always recognise that the primary aim in exercising the powers of the court is to secure the just resolution of disputes in accordance with the substantive rights of the parties.”

7.  Taking into account those principles, I am prepared to allow the plaintiff to incorporate into her Statement of Claim matters already pleaded in the existing Reply.  As far as I can see they are matters which are already in issue between the parties in the proceedings. 

8.  The material facts in question have already been pleaded by the plaintiff, and dealt with by the parties in their respective evidence if thought fit.  There is and can be no element of surprise or prejudice.

9.  For those reasons, I would allow the amendments at paragraph 52(4)(i) and (iii), paragraph 52A and paragraph 52F of the proposed Re-re-amended Statement of Claim.

10.  Further, I am not sympathetic to the defendant’s application for an adjournment to consider their position.  My view is that had they wished to put forward a positive case to answer those allegations already contained in the Reply, they could have applied for leave to file a Rejoinder.

11.  For the same reasons, and a fortiori, I would also allow the amendments proposed at paragraph 52(4)(iv) of the proposed Re-re-amended Statement of Claim.  The amendment relates to matters already pleaded in later parts of the existing Re-amended Statement of Claim.

12.  I would further allow the amendment at paragraph 52, paragraph 52C and paragraph 52E of the proposed Re-re-amended Statement of Claim to plead gross negligence.

13.  I agree with the plaintiff that the allegation of gross negligence is a legal conclusion on the existing pleaded facts.  No new factual averments have been added.  I agree that the adding of a legal conclusion when the plaintiff has already alleged wilful neglect and wilful default cannot give rise to any prejudice. 

14.  Further, the plaintiff is only relying on the existing pleaded particulars in support of their case on gross negligence.

15.  I disagree with the defendant that the pleading of gross negligence should not be allowed because it is demurrable.  In my view, it is arguable, as indeed it is argued by the plaintiff, that the difference between negligence and gross negligence is one of degree and not kind.