YEUNG WING LUN ALAN v. YEUNG CHUNG KWONG AND OTHERS

CAMP 174 /2023 & CACV 137/2023, [2023] HKCA 664

On appeal from [2023] HKCFI 1134

(Heard together)

CAMP 174/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 174 OF 2023

(ON AN INTENDED APPEAL FROM HCA NO 1648 OF 2019)

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AND

CACV 137/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 137 OF 2023

(ON APPEAL FROM HCA NO 1648 OF 2019)

________________________

________________________

(Heard together)

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REASONS FOR JUDGMENT

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Hon Kwan VP (giving the Reasons for Judgment of the Court):

1.  In the afternoon of 2 May 2023, we heard an urgent application of the plaintiff for leave to appeal against the decision of Au-Yeung J given on 27 April 2023 (“the Decision”)^[1], in which she dismissed his summons dated 24 March 2023 for leave to join the estate of his father Yeung Chung Sing (楊松星) as the 2^nd plaintiff, for him to be appointed to represent the estate of his father for the present proceedings, and for leave to amend the writ of summons and the statement of claim (“Joinder and Amendment Summons”).

2.  In the morning of 2 May 2023, the trial of this action commenced before the judge.  Before the commencement of the trial, the plaintiff made an application for leave to appeal against the Decision.  This was refused by the judge.

3.  The plaintiff renewed his application for leave to appeal to the Court of Appeal.  Having read the papers, we held an urgent rolled-up hearing, treating the renewed leave application as the hearing of the appeal if leave were granted.  At the conclusion of the hearing, we granted leave to appeal and allowed the appeal, set aside the Decision, granted §§1 to 4 of the Joinder and Amendment Summons and ordered the trial before the judge to be adjourned and re-fixed.  These are the reasons for our judgment.

4.  We allowed the appeal notwithstanding it is a challenge against the exercise of judicial discretion, as we are satisfied that the judge’s exercise of discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible.

5.  We do not propose to repeat the pleaded cases on both sides set out in the Decision at §§3 to 21.  Suffice to say that the plaintiff’s case is premised on a representation made by his grandfather (the registered owner of the land) to his father in 1976 that a portion of the land (“Relevant Part”) would belong exclusively to the father for his use, enjoyment and possession (“Representation”).  The 1^st to 3^rd defendants are the other sons of the grandfather.  The four brothers became tenants in common of the land assigned to them by the grandfather by deed of gift in 1992.  In this action, the plaintiff seeks a declaration that the 1^st to 3^rd defendants, with the plaintiff, are holding the land on trust for all four brothers in equal shares with the exclusive right to possess the Relevant Part on the plaintiff’s behalf.

6.  As the plaintiff did not have title to the land and the Representation was not made to him, at the pre-trial review on 3 February 2023, the judge raised with the plaintiff among other things it was not clear how he, in his personal capacity, could assert rights in the land against the 1^st to 3^rd defendants, or how he could rely on the Representation.  Upon change of his legal team, the plaintiff issued the Joinder and Amendment Summons.  The defendants, who were and are acting in person, did not appear at the hearing of that summons before the judge on 19 April 2023 to oppose the application.

7.  The judge found in the Decision:

-  “It is thus obvious that without the joinder, the Plaintiff would have no capacity in his own right to sue.” (§29)

-  With regard to the proposed amendments to the statement of claim, “there exists a bona fide claim and proper questions to be tried between the Father’s estate and the existing parties and it is necessary for the resolution among them to allow the estate of the Father to be joined as the 2^nd Plaintiff.” (§30)

-  “The Plaintiff is plainly someone having an interest in the outcome of the proceedings or the estate.  He is the most appropriate person to represent the estate of the Father.” (§31)

-  “The proposed amendments are substantial and essential to complete the Plaintiff’s causes of action, without which he is unlikely to succeed.” (§35) 

-  “… if the application to amend had been made earlier in the case management stage, it should have been allowed to enable the just resolution of disputes between the parties and the Father.” (§39) 

8.  The judge dismissed the Joinder and Amendment Summons on the basis of delay alone, as the application was made “grossly late”, ie less than six weeks before the commencement of the trial and the hearing itself was two weeks before the trial.  Pleadings have closed by December 2020 and the last witness statement was filed on 15 August 2022. Granting the application would derail the two-day trial.  The plaintiff did not assert any exceptional circumstances to justify varying the trial dates which are milestone dates.  The judge did not think the change of counsel is a good reason for the late application.  She balanced the prejudice to the defendants (who would have to face trial at another time), the wastage of the court’s trial time (when the court’s diary is under great pressure), and the prejudice to the plaintiff if the application were refused (the father’s estate may be able to launch a claim against the defendants where the court has not adjudicated on the merits), and came to the view that the first two matters should “tip the scale against the grant of relief” and therefore dismissed the application on the ground of delay. (§53)

9.  In light of the findings in the Decision as mentioned earlier, it seems to us that the dismissal of the application would involve an injustice as it would have the effect of forcing the plaintiff to go to trial on a defective pleading which the judge recognised is “unlikely to succeed”.  We are inclined to agree with Mr Billy Ma for the plaintiff that in dismissing the application, there cannot be a fair trial or a just resolution of the parties’ disputes.  As stated by Cheung CJHC (as the Chief Justice then was) in 厦門新景地集團有限公司 v Eton Properties Ltd & Ors, HCMP 13, 15, 18 and 21/2012, 14 February 2021, at §30:

“All this does not necessarily mean, however, that the court must refuse the amendments, bearing in particular in mind that the ‘primary aim’ in exercising the case management (or other) powers of the court is to secure the ‘just resolution of disputes in accordance with the substantive rights of the parties’: O 1A, r 2(2), the Rules of the High Court (Cap 4A).  Driving a party away from the judgment seat without proper adjudication is always a serious matter.  Such a power of exclusion, like all other powers given under the rules, must only be exercised after considering all the relevant underlying objectives set out in O 1A, r 1.”

10.  We have reservations whether the father’s estate would not be barred from launching a new claim against the defendants as contemplated by the judge.  Mr Ma made the point that the plaintiff might be considered as the privy of the father’s estate for the purpose of issue estoppel or res judicata principles.

11.  Quite apart from the potential bar of res judicata or issue estoppel, we doubt if it would be cost-effective to make the plaintiff go to trial on defective pleadings and then start new proceedings against the defendants.  This may be a total waste of costs, time and resources of the court.

12.  As to prejudice to the defendants, whilst the trial dates would be put back and the final resolution of the disputes delayed, any prejudice to the defendants would pale in comparison to the real and significant prejudice suffered by the plaintiff.  Without the joinder and amendments, the plaintiff would not be allowed to put forward the real case he wished to pursue at the trial and he or his father’s estate might not be able to launch a new claim against the defendants.  He could well be driven away from the judgment seat without proper adjudication, which, as stated by Cheung CJHC, is “always a serious matter”.

13.  In the particular circumstances of this case, we do not think the plaintiff should be so excluded from the judgment seat and greater importance should have been attached to the primary aim of the rules of case management, namely, to secure the just resolution of disputes in accordance with the substantive rights of the parties.  The circumstances here are sufficiently exceptional to justify a change of the trial dates.

14.  For all the above reasons, we are satisfied that the judge was plainly wrong in dismissing the Joinder and Amendment Summons.

15.  As the plaintiff is seeking an indulgence from the court, and in view of his gross delay, we have ordered him to pay all costs of and occasioned by the amendments sought in the Joinder and Amendment Summons in any event, as well as all the costs of and occasioned by the adjournment of the trial before the judge in any event.

16.  Having heard the parties, we made no order as to the costs of the renewed leave application and appeal against the Decision.

[1]  [2023] HKCFI 1134