WAH SUN HONG LTD v. WONG LEE YUK PING AGNES

HCA 874/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 874 OF 2015

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D E C I S I O N

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Introduction

1. By the Judgment handed down on 12 August 2016 (the “Judgment”), this court granted the orders sought by the plaintiff, to the effect that unless the defendant do provide the outstanding particulars by 9 September 2016, the relevant parts of her Defence be struck out.

2. By summons dated 25 August 2016, the defendant applies for leave to appeal against the Judgment.  It is not in dispute that to obtain leave, the defendant must establish that her intended appeal has a reasonable prospect of success.  Reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable” [see: SMSE v KL [2009] 4 HKLRD 125, at paragraph 17]. 

3. The leave application is opposed by the plaintiff on the basis that the defendant cannot meet the threshold for obtaining leave.

Prospect of success of the intended appeal

4. The background and procedural history of the case have been set out in paragraphs 1 to 16 of the Judgment.

5. In paragraphs 22 and 23 of the Judgment, I held as follows: –

“22. Mr Lawrence Cheung, counsel for the defendant, sought to argue that the FBP Order was merely a “time order”. As such, it was duly complied with by the defendant by the filing of the Further and Better Particulars of the Defence on 11 February 2016. Mr Cheung went on to submit that the FBP Order did not oblige the defendant to answer those requests which the plaintiff was not “entitled”.

23. With respect, Mr Cheung’s submissions are directly contrary to the Court of Appeal’s decision in the Moulin Global Eyecare case cited above, where at paragraph 14 Barma JA (giving the reasons for decision of the court) held as follows: -

‘14.  The order required the plaintiff to deliver its answers to the defendant’s request by the day indicated.  A response to the effect that the defendant is not entitled to make the request and that the plaintiff would therefore not provide a substantive answer to it cannot in our view be properly described as an answer to the request.’ ”

6. The defendant contends that this court has misapplied the decision in Moulin Global Eyecare Holdings Ltd v Olivia Lee Sin Mei, HCMP 2773/2015 (Judgment of the Court of Appeal dated 14.03.16).  The defendant maintains that the order made by Master J Wong at the 3-minute call over hearing on 23December 2015 (defined and set out in paragraph 2 of the Judgment as the “FBP Order”) was in fact a time order, meaning that the order merely provided a timeframe within which the defendant was required to respond to the plaintiff’s request for Further and Better Particulars.

7. The defendant further submits that the decision of this court was erroneously reached because the defendant had not argued the plaintiff’s entitlement to the particulars before Master J Wong nor did she have the opportunity, over a 3-minute hearing, to do so.  It was therefore never a case of her re-arguing anything.

8. With respect, I do not think that the defendant’s contentions are reasonably arguable.

9. As pointed out by the Court of Appeal in the Moulin Global case (Ibid) at paragraph 12, whether the defendant in the present case can reopen the question of whether or not she was entitled to decline to answer parts of the request is an issue that has to be answered by reference to the FBP Order.  That order having been made, whether or not the defendant can take this course depends on the proper construction of the FBP Order.

10. Although it is correct that the FBP Order should be construed in its context, having regard to the background to it, it is necessary also to keep in mind how the order would objectively be understood [see: paragraph 15 of the Moulin Global case (Ibid)].  In this regard, the FBP Order simply provides that: “the Defendant do file and serve the further and better particulars of the Defence… sought by the plaintiff in [the Request] within 28 days from the date hereof ”.  The FBP Order did not say that the defendant was only required to respond to the plaintiff’s request for Further and Better Particulars within the time stipulated.

11. Further, it is part of the context and background of the FBP Order that the defendant did not indicate or mount any objection to the plaintiff’s request for further particulars at the hearing before Master J Wong.  In my view, it is not to the point that the defendant could not have argued her objections over a 3-minute hearing.  As held by the Court of Appeal in the Moulin Global case (Ibid) at paragraph 16: –

“… One would have expected the plaintiff to have informed the judge and the defendant that there were aspects of the request that it considered objectionable, if that were its position, or at least to have made it known (if it were the case) that it was still considering its position in relation to whether or not it should be required to answer parts of it. This would have enabled the court and the parties to know where matters stood, to give appropriate directions to ensure that those requests not in dispute were answered within a reasonable timeframe, and to make arrangements to hear any argument that might be necessary in respect of any disputed requests. But this was not done.”

12. In the circumstances, it seems to me that the FBP Order is to be construed as I construed it in the Judgment, and I see no reasonable prospect of the defendant succeeding in her argument to the contrary.

13. Finally, I am of the view that the case of Noble Group Ltd v Arnaud Vagner, HCA 594/2015 (Decision of Madam Recorder Linda Chan SC dated 17/03/2016) relied on by the defendant can be distinguished.  In that case, there was nothing in the order which required the defendants there to file and serve further particulars on all the requests set out in the plaintiff’s request.  Indeed, the order in that case did not even refer to the plaintiff’s request, still less all the requests contained therein [see: paragraphs 11 and 18 of the Decision].

Conclusion

14. For the reasons set out above, the defendant’s application for leave to appeal is dismissed.

15. Further, I order that the costs of the application be paid by the defendant to the plaintiff forthwith, such costs are to be taxed on a party and party basis if not agreed. 

16. Having considered the papers, at present I am of the view that it is not appropriate to order costs on an indemnity basis.

17. The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

18. Lastly, I express my gratitude to counsel on both sides for their assistance in this matter.