MAN CHEUNG INTERNATIONAL TRADERS LTD AND ANOTHER v. CLSA LTD

HCMP 1308 /2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1308 OF 2010

(ON AN INTENDED APPEAL FROM DCCJ NO. 6778 OF 2002)

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BETWEEN

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D E C I S I O N

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Hon Rogers VP:

1.  The plaintiffs wish to appeal against the decision of HHJudgeChow of 27 May 2010 dismissing the appeal from the order of Master C. Lee dated 22 March 2010 allowing the defendant’s application for leave to amend its defence. The plaintiffs object to the defendant having been given leave to amend paragraph 10(1) of the defence.

2.  The matter is comparatively quite simple.  In the action the plaintiffs claim damages from the defendant on the basis that the defendant failed to execute an order for the sale of a parcel of 3000 shares and only sold 1000 shares.  It is said that the order was given on 3 November 2000 for the sale of the shares at HK$75 or better.  Paragraph 10 of the statement of claim reads: -

“On that day sufficient buyers existed in the NASDAQ market to buy all 3,000 shares at US$75, but for reasons then unknown to the Plaintiffs, the Defendant only executed the order for 1,000 shares at a price of US$75.”

3.  Originally the defendant had pleaded:

“ (1) It is admitted that for a short period of time sufficient buyers existed in the NASDAQ market to sell all 3,000 shares at US$75 on 3 November 2000 and that on 3 November 2000 the Defendant executed an order to sell 1,000 shares at a price of US$75.

(2)      .....................

(3)      The Defendant further avers that, in accordance with the market practice and the Defendant’s own standard practice referred to above, it sought to obtain a better price for the shares until instructions to the contrary are received from the client.”

4.  The amendment that was permitted was to delete the words “sell all” in subparagraph (1) and to insert the word “buy”.  Without going into the rest of the defence it is sufficient to say that the amendment has not changed the thrust of the defence which remains the same.  The plaintiffs’ protestations that the change has deprived them of an admission do not bear analysis.  The position remains precisely the same.  The judge below considered that the use of the word sale was anomalous. I consider that the meaning was quite plain.

5.  In those circumstances, I see no ground for an appeal.  Furthermore, any appeal would simply create satellite litigation of a most undesirable kind.  Although the plaintiffs claim that they are put at a disadvantage because they are not able to adduce evidence so long after the event in question, no explanation has been provided as to why this matter has not been brought to trial despite a period of 8 years having elapsed since the commencement of these proceedings.

6.  I would refuse this application for leave to appeal and would make an order under Order 59 rule 2A(8) that since this application is totally without merit, no party may request the determination to be reconsidered at an oral hearing inter partes.  I would make an order nisi that the costs of this application be to the defendant.

Hon Le Pichon JA:

7.  I agree.