GOLD DRAGON LTD v. POON LAI BING

DCCJ2299/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2299 OF 2006

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D E C I S I O N

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1.  This is the Defendants’ application for leave to appeal my decision made on 23.4.2007.  The Defendants put forward 5 grounds of appeal. 

2.  The Defendants submit that it was clear in the letter of 14.4.2007 the Defendants’ solicitor, without admitting the lack of particulars of the Defendants’ amended defence and counter-claim, was instructed to provide the Plaintiff’s solicitors with further particulars to assist the latter to comprehend the Defendants’ case on “the Attendance Report Incident”.  The Defence argues that during the course of argument on the Plaintiff’s application to strike out, the Plaintiff’s counsel did not take any issue that the particulars furnished by the Defendants in the said letter formed part of the Defendants’ pleadings. 

3.  Because the Defendants took the stance that the amended defence and counter-claim contained all the necessary and material particulars to support the Defendants’ claim of fraud, forgery and dishonesty, it is abundantly clear that the “particulars” were not provided for the purpose of supplementing any deficiency in the particulars in the pleadings of the amended defence and counter-claim.  Therefore those “particulars” were not used for the purpose of being incorporated into the pleadings so that they become part and parcel of the defence pleadings, and as such these “particulars” did not form part of the Defendants’ pleadings.  Therefore the Defendants’ argument that the “particulars” form part of the Defendants’ pleadings simply did not arise.  The fact that the Plaintiff’s counsel did not take issue on this point would not change the situation.  The Plaintiff’s counsel’s stance would not render these particulars to be incorporated into the Defendants’ pleading. 

4.  The defence counsel said that the judge did not raise with counsel that the letter of 14 April 2007 was not part of the pleadings and he invited submission on his view. 

5.  I formed my view and made my decision after hearing counsel’s arguments.  The stance of the Defendants in the said letter is clear and obvious and whether the defence counsel wishes to submit anything on this letter is entirely a matter for him.  It is not my duty to assist him to raise a question and invite a submission from him.  If anything is not raised due to any reason, it is a matter for the parties. 

6.  The Defence Counsel submits that an opportunity should be given to the Defendants to amend the Defendants’ amended Defence and Counter-claim.  There was no fall-back position relied upon by the Defendants.  In their written submission in contest of the striking-out application, there was no invitation or application to this court to amend their pleadings in case the Court made a finding in favour of the Plaintiff. 

7.  If the Defendants had considered that an opportunity should be given to them to amend their pleadings, they should have informed the Court of this so that it could be argued in full.  There was no such invitation, no application, no proposed amendment in this regard.  Without invitation or application, no such issue could arise.

8.  In relation to the estoppel argument, the Defendants say that I was wrong in holding that the issue of estoppel did not arise.  In my decision I decided that the authorities relied upon by the Defendants did not apply in the present case, because insofar as the Defendants are concerned, their position did not involve an election of causes of action.  What the Plaintiff faced at the time the Defendants applied to amend their defence and counterclaim are the steps they would take in response to the application for amendment.  This did not involve any election of different causes of action.  The Plaintiff’s choice of consenting to the application of amendment is not inconsistent with the right to take out the striking out application.  What the Defendants submitted in this regard is just repetition of their submissions already presented to this Court during the striking out application.  I am not convinced that I am wrong. 

9.  In my view, the appeal has no prospect of success.  I therefore decline to grant any leave to the Defendants to appeal to the Court of Appeal.

(Discussion re costs)

10.  Costs relating to this application covering the period from 24 April 2007 up to today be to the Plaintiff, to be taxed if not agreed, with certificate for Counsel.

(Discussion re wording of order)

11.  Pursuant to joint application of the parties, I order that this case be adjourned sine die, with liberty to restore in consultation with Counsels’ diaries.

(Discussion re costs)

12.  Costs of the hearing on 18^th April, 2007 be costs in the cause of the trial in this case.

(Discussion re costs)

13.  In relation to the application for leave to appeal made by the Defendants the Plaintiff’s costs be taxed in accordance with Legal Aid Regulations.