ZHOU ZHI v. GF CAPITAL (HONG KONG) LTD

HCA 837/2021

[2026] HKCFI 4675

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 837 OF 2021

(Transferred from the Labour Tribunal - Claim No LBTC 1472/2021)

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DECISION

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Introduction and Procedural Background

1.  Today is the pre-trial review (“PTR”) of this action, the trial of which is scheduled to commence on 14 September 2026 with 9 days reserved.

2.  I have also before me a Summons dated 27 April 2026 for leave to the Plaintiff (“P”) to re-re-amend the Re-Amended Statement of Claim (“RASOC”) in the manner shown in the draft Re-Re-Amended Statement of Claim attached thereto (“the Amendment Summons”). Mr Maurellet SC leading Mr Chua, counsel for D, objected to P’s amendment application.

3.  The proposed amendments affect over 20-odd paragraphs of the RASOC.  They have been categorized into 4 categories of amendments in P’s Reply Note of Mr Lee and Ms Shum, counsel for P. 

4.  Category 1 amendments are in respect of amendments to update various figures based on information set out in the Further & Better Particulars and information provided by the Defendant (“D”) during discovery.  These should not be objectionable as the updated calculations are matters of evidence that ought to be properly reflected in the pleadings and to set out clearly P’s case.  I would therefore allow these amendments.

5.  Category 2 amendments are in respect of amendments to withdraw certain claims of P.  Again, these should not be objectionable and would better focus the parties on the real issues in dispute.  I will also allow them.

6.  Category 3 and Category 4 amendments are matters which Mr Maurellet objected to in so far as they seek to expand in at least two material respects P’s case for which he submitted that D may need to file supplemental evidence and may therefore jeopardize the trial dates. 

7.  In the present case, P seeks to claim against D, her ex-employer, for sums due to her under an “Addendum” dated 27 June 2018 made between P and D.  Under the Addendum, D’s Merger and Acquisition team which was led by P was entitled to share in D’s Gross Income if certain conditions were met.  The Addendum and P’s employment were also to be extended if certain “Business Goals” were met.

8.  By the Category 3 amendments, P seeks to plead a new case that even if the court finds that the Addendum has not been extended by reason of the achievement of the Business Goals, the Addendum was nonetheless extended by reason of the conduct of the parties.  The conduct relied upon include: (a) after 1 January 2020, P continued to work for D and D continued to employ P; (2) the content of the email dated 25 March 2020 as to what was discussed at a meeting on 24 March 2020; (c) after 31 December 2019, D did not inform P that she did not meet the Business Goals or that the Addendum had not been extended; and (d) not until D filed its defence in LBTC 1472/2021 did D assert that P had not met the Business Goals.  Mr Lee submitted that most of the matters relied upon by P have been set out in the Amended Reply or responded to by D in its witness statement of Shen to the effect that there were informal discussions between January and May 2020 and between October 2020 and December 2020 between P and D to discuss a new bonus scheme.  Mr Maurellet disagreed submitting that the evidence previously filed by D was to address P’s pleaded case that D was estopped from denying that the Addendum had been extended but now P seeks to rely on certain conduct which had not been previously addressed in D’s evidence.  I do not think that it would be fair to shut D completely out if it says it wishes to file further evidence to respond to a case not previously pleaded so I agree that supplemental evidence would have to be filed.

9.  Category 4 amendments are in respect of amendments to plead a new implied duty that D is to take all reasonable steps to enable P to attain Gross Income including from clients such as Quick and Easi.  Factual matters in respect of Quick and Easi are also now pleaded which Mr Maurellet submitted D required further evidence to address.  Mr Lee would appear to accept that D may wish to file supplemental evidence but submitted that this could be done without disrupting the trial dates.  In any event, he indicated that he is prepared not to pursue this category of amendments if it would endanger the trial dates.

10.  The applicable legal principles concerning interlocutory applications taken out shortly before a pre-trial review (“PTR”) were set out in Poon Wong Yee See v Lo Sau Woon Diana [2023] HKCFI 2188 at §20 by DHCJ MK Liu by referring to the learned judge’s decision in Liu Hon Wong and Others v Liu Chee Kwan and Another [2022] HKCFI 3157.  See also China Forestry Holdings Co Limited & Ors v KPMG [2021] HKCFI 1519 per Anthony Chan J (as he then was) at §§8, 22 and 24.  These include:

(1)  A PTR is not an extension of the CMC.  The court expects a case to be ready for trial.  Late interlocutory applications may be dismissed on the basis of delay alone since an adjournment of a trial is prejudice to a party, who has every right to expect a trial fixed months ahead with due notice to the parties can proceed without disruption and time and costs being wasted;

(2)  There may also be prejudice to the opposing party to have to divert their resources to deal with the late interlocutory application and disrupt their preparation for trial.  It is no answer to contend the opposing party should use the time leading up to trial to meet the new case by filing consequential amendments and further evidence in response.  There is no reason to require the innocent party to “squeeze its investigation, preparation and decision-making processes all into the coming few weeks”;

(3)  Last minute pre-trial applications also disrupt the preparation for trial on the part of a trial judge in terms of reading into the case.  Instead of getting himself or herself familiar with the issues that have to be tackled at the trial, the judge would have to divert attention and spend time and efforts on such application.  There may also be serious disruption to the court diary as the court has to struggle to find some time during the limited time before the trial to hear the applications;

(4)  A heavy burden is on the applicant to demonstrate by affidavit evidence exceptional circumstances to explain and justify the delay and the application may be dismissed on the ground of delay alone if not properly or satisfactorily explained; and

(5)  If allowing a last-minute pre-trial application would derail trial dates or prolong the trial beyond the time allocated, the court may refuse leave, even if it means that the applicant would have great difficulty in establishing his case.

11.  The present application is not only late, is contrary to matters declared by P’s solicitors to be true and accurate, and was in breach of previous directions of the court:

(1)  In seeking leave for parties to set down this action for trial in P’s Listing Questionnaire dated 3 October 2023, P confirmed that her pleadings did not require to be amended[1];

(2)  On 4 December 2023, P’s solicitors proposed to D’s solicitors to set down the action for trial saying that save for P’s specific discovery application, there was no outstanding interlocutory application;

(3)  In P’s Timetabling Questionnaire dated 28 December 2023, it was stated that P did not intend to amend her pleadings or make any further interlocutory application;

(4)  On 9 January 2024, Master Ho directed that counsel’s advice be obtained by 28 March 2024 and all interlocutory applications were to be taken out within 14 days thereafter (i.e. 11 April 2024);

(5)  In P’s Listing Questionnaire dated 3 May 2024, it was stated that P may make an application to amend the RASOC if so advised; and

(6)  On 14 May 2024, Master Ho adjourned the CMC in light of the possible application to amend the RASOC but imposed a deadline to do so by 14 June 2024.

12.  No affirmation has been filed to explain the delay and why the procedural directions have not been complied with by P. 

13.  In P’s Reply Note, it was said that the failure to file an affirmation is a technical objection.  I respectfully disagree based on the authorities cited above.  Besides, the explanation from counsel (with an undertaking to file an affirmation) was that the original counsel team came out of the case after February 2024 with new counsel retained, there was a change of solicitors in late 2025 and then the original counsel was retained who then carried out a thorough review, a change of legal team rarely justifies last minute amendments.  See Hongkong Changyi Real Estate Development Limited v Neo-China (Group) Infrastructure Investment Limited (unrep) HCA 1576/2011, 25 February 2014, §1 per Mimmie Chan J cited in Liu Hon Wong at §25. 

14.  See also Hongkong Changyi Real Estate Development Ltd at §3 which is apposite to the present case:

“ The objectives of the Civil Justice Reform are to encourage early preparation for trial, dealing with cases expeditiously, cost-effectiveness and proportionality.  Although there is no doubt 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, it can hardly be said to be just if a party is required, as a result of late applications made by its opponent at the last minute, in disregard of timetables laid down by the court in good time at case management hearings and pretrial review hearings, to plead to amendments, consider new documents and evidence, and to file supplemental witness statements at the eve of trial.”

15.  Bearing in mind the unsatisfactory explanation for the delay and lack of any exceptional circumstances to justify the last minute application, the disruption to the parties’ and the court’s preparation for trial (not overlooking the extensiveness of the issues raised and the volume of the documentary evidence filed) and possible derailing of the trial dates if further evidence has to be filed leading to a delay of the trial and waste of time, costs and judicial resources contrary to the CJR objectives, I would dismiss the Amendment Summons (save to allow the Category 1 and Category 2 amendments) with costs to D to be summarily assessed on paper.

16.  I shall now proceed to hear the parties on the further directions to be given.

[1] P filed her Statement of Claim on 2 August 2021, which was amended on 21 October 2021 and re-amended on 13 July 2023.  Mr Lee was the counsel who signed off the original Statement of Claim and subsequent amendments to it.