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HCMP007149/1999
HCMP 7149/1999
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 7149 OF 1999
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IN THE MATTER of the property known as ALL THAT one equal undivided thirtieth part or share of and in ALL THAT piece or parcel of ground registered in the Land Registry as KOWLOON INLAND LOT NO.3051 And of in the messuages erections and buildings thereon known as HING YIP KING'S BUILDING（興業皇帝大廈）("the Building") Nos.293, 293A and 293B Prince Edward Road West, Kowloon TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT FLAT B on the EIGHTH FLOOR (otherwise known as No.293 Prince Edward, Eighth Floor) and CAR PORT NO.14 on the GROUND FLOOR of the Building ("the 1st Mortgaged Property")
And
IN THE MATTER of the property known as ALL THOSE 54 equal undivided 1,000th parts or shares of and in ALL THOSE 1,290 equal undivided 102,750th parts or shares of and in ALL THAT piece or parcel of ground registered in the Land Registry as INLAND LOT NO.8615 And of and in the messuages erections and buildings erected thereon known as LIPPO CENTRE (formerly known as BOND CENTRE), No.89 Queensway, Hong Kong ("the Building") TOGETHER with the exclusive right to hold use occupy and enjoy ALL THAT OFFICE NO.3 on the THIRTY-FOURTH FLOOR of TOWER TWO, LIPPO CENTRE (formerly known as PEREGRINE TOWER and TOWER 1 (WEST TOWER) and EIE Tower) of the Building ("the 2nd Mortgaged Property")
And
IN THE MATTER of the property known as ALL THOSE 965 equal undivided 212,000th parts or shares of and in ALL THOSE pieces or parcels of ground registered in the Land Registry as THE REMAINING PORTION OF SUBSECTION 1 OF SECTION A OF INLAND LOT NO.946, SECTION C OF SUBSECTION 1 OF SECTION A OF INLAND LOT NO.946, SECTION B OF SUBSECTION 1 OF SECTION A OF INLAND LOT NO.946 and INLAND LOT NO.7956 (collectively "the Land") And of in the buildings thereon known as "IMPERIAL COURT（帝豪閣）No.62G Conduit Road, Hong Kong ("the Building") TOGETHER with the right to the exclusive use occupation and enjoyment of ALL THAT FLAT 4 on the THIRTY SEVENTH FLOOR of BLOCK C of the Building ("the 3rd Mortgaged Property")
And
IN THE MATTER of the property known as ALL THOSE 103 equal undivided 212,000th parts or shares of and in ALL THOSE pieces or parcels of ground registered in the Land Registry as THE REMAINING PORTION OF SUBSECTION 1 OF SECTION A OF INLAND LOT NO.946, SECTION C OF SUBSECTION 1 OF SECTION A OF INLAND LOT NO.946, SECTION B OF SUBSECTION 1 OF SECTION A OF INLAND LOT NO.946 and INLAND LOT NO.7956 (collectively "the Land") And of and in the buildings thereon as "IMPERIAL COURT（帝豪閣）No.62G Conduit Road, Hong Kong "(the Building") TOGETHER with the right to the exclusive use occupation and enjoyment of ALL THAT CAR PARKING SPACE NO.7 on the CAR PARK LEVEL 6 of the Building ("the 4th Mortgaged Property")
And
IN THE MATTER of a Mortgage in respect of the Mortgaged Property dated 20th November 1995 and registered in the Land Registry by Memorial No.6468234 ("the 1st Mortgage")
And
IN THE MATTER of a Mortgage in respect of the Mortgaged Property dated 11th July 1996 and registered in the Land Registry by Memorial No.UB6708157 ("the 2nd Mortgage")
And
IN THE MATTER of a Mortgage in respect of the Mortgaged Property dated 27th February 1997 and registered in the Land Registry by Memorial No.6991744 ("the 3rd Mortgage")
And
IN THE MATTER of a Mortgage in respect of the Mortgaged Property dated 2nd May 1998 and registered in the Land Registry by Memorial No.7491016 ("the 4th Mortgage")
And
IN THE MATTER of Order 88 of the Rules of the High Court
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THE YIEN YIEH COMMERCIAL BANK LIMITED |
Plaintiff |
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HUNG OI WAH |
1st Defendant |
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GOLDMATE DIAMOND LIMITED |
2nd Defendant |
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GOLDMATE LIMITED |
3rd Defendant |
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WHALE WIDE LIMITED |
4th Defendant |
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Coram: Hon Yuen J in Chambers
Date of Hearing: 28 September 2000
Date of Decision: 28 September 2000
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D E C I S I O N
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1. This is an appeal by the Plaintiff from decision of Master C B Chan extending time for the 1st Defendant to file a supplemental affirmation. Before I deal with the arguments which have been set out in the written submissions and in the oral submissions before me today, it may be helpful to first set out the background to the appeal.
2. These are proceedings under Order 88 of the Rules of the High Court. They relate to four properties. The 1st Defendant is the mortgagor and the Plaintiff is the mortgagee of the 1st mortgaged property. The claim against the 1st Defendant is for payment of moneys due under the covenant in the 1st mortgage and for possession of the 1st mortgaged property.
3. The originating summons was issued on 17 November 1999. The affirmation of the Plaintiff in support was filed on 15 December 1999. The deadline for the 1st Defendant's affirmation in opposition was therefore 12 January 2000. No affirmation was filed within time. On 19 January 2000, the 1st Defendant issued her 1st time summons for an extension to file her affirmation in opposition. Notwithstanding a first extension given, no affirmation was filed within the extended time which expired on 7 February.
4. On 10 February 2000, the 1st Defendant issued a 2nd time summons for a 2nd extension to file her affidavit in opposition. Master Lung on 14 February 2000, gave an unless order that unless the 1st Defendant file and serve her affirmation in opposition by 4.00 pm on 6 March 2000, judgment be entered in favour of the Plaintiff.
5. On 6 March 2000, the 1st Defendant filed an affirmation in opposition. In this affirmation, the 1st Defendant alleges that another action had been instituted by the same Plaintiff against her daughter and son-in-law, and that it would be inequitable for the Plaintiff to proceed against her, the 1st Defendant, in the present originating summons and, in view of the fact that (as she claims) the total value of the other mortgaged properties would be sufficient to discharge the liability due and owing to the Plaintiff, that the Plaintiff need not resort to her mortgaged property.
6. On top of that, the 1st Defendant said in her affirmation that she was not bound by the mortgage because she did not know that it was a mortgage when she signed it. She also said that she did not sign a deed of guarantee.
7. So in this affirmation, it would be seen that quite apart from other submissions, the 1st Defendant has alleged that she did not know the contents or the effect of the mortgage; in other words, a non est factum defence, and it would therefore appear that there is one factual dispute that the Plaintiff would have to deal with. No date has yet been fixed for the hearing of the originating summons.
8. This affirmation was filed in time. However, the 1st Defendant's solicitors only served on the Plaintiff's solicitors an unexecuted copy about half an hour after 4.00 pm. On the next day, however, a copy of the executed affirmation was properly served on the Plaintiff's solicitors.
9. On the basis of that failure to comply with the service part of Master Lung's unless order, the Plaintiff issued a summons on 24 May 2000 for judgment to be entered against her. On 31 May, there was filed the affirmation of Chan Chun Wa of the 1st Defendant's solicitors deposing to the reason for their failure to serve an executed copy within time. On 1 June 2000, there was the call over hearing of that summons where the Plaintiff was given leave to file an affirmation in reply and an order was made that no further affidavit be filed without the leave of the court. This summons has since been heard and it would appear from the Court file that another master has declined to enter judgment.
10. Meanwhile on 15 July 2000, the 1st Defendant issued a summons for leave to file her further affirmation within 14 days. On 20 July that summons was heard by Master C B Chan. According to the affirmation of the Plaintiff's solicitor who was present at that hearing, a Mr G Au the 1st Defendant's solicitor had submitted to the Master that the purpose of this intended further affirmation of the 1st Defendant was to explain the circumstances of the delay in the service of her 1st affirmation.
11. Up until the start of the hearing today, there has been no affidavit or anything else to contradict what Mr Lee, the Plaintiff's solicitor, had said in his affirmation. I have looked at the court file and it would appear that someone (I am not sure whom) has written against the 1st paragraph that the 1st Defendant do have leave to file and serve her further affirmation "for the hearing fixed on 22 August" which is the hearing for judgment on the basis of non-compliance with the service part of the unless order.
12. However to date, no draft order has been sent for the Master's approval. If those words were part of the Master's order, then any further affirmation to be filed by the 1st Defendant should and should only relate to the reasons for service out of time of the unexecuted copy, and any affirmation dealing with the substantive merits of the 1st Defendant's defence would not have been permitted under Master C B Chan's order of 20 July 2000.
13. In any event, the deadline for the filing of that further affirmation expired on 31 July 2000 and on 3 August 2000, the 1st Defendant issued the time summons for leave to file the further affirmation which was heard on 4 August by Master C B Chan again.
14. According to the affirmation of another solicitor acting for the Plaintiff (Miss Yip) the solicitor acting for the 1st Defendant on that occasion (a Mr Ng) had also submitted to the Master that the 1st Defendant wanted to file a further affirmation in regard to the late service of the 1st Defendant's 1st affirmation. Again there has been no evidence filed to contradict Miss Yip's affirmation and I have been told by Mr Liu, counsel for the 1st Defendant today that Mr Ng has left the firm.
15. However, Mr Liu has told me that Mr Au is prepared to make an affirmation to the effect that what he submitted to the Master was that the further affirmation of the 1st Defendant would deal with matters for the "main hearing" by which he meant the substantive hearing of the originating summons and not the application for judgment to be entered on the basis of non-compliance with the service part of Master Lung's unless order.
16. In any event, it would appear to me that to save costs and time, instead of considering whether the order that was made by Master C B Chan should be restricted to the non-compliance summons, it would appear to be sensible that I should deal today with the matter which is truly at the heart of the dispute between the parties which is whether the 1st Defendant should have leave to file and serve her further affirmation in her attempt to improve on the merits of her submissions in defence.
17. It is true that the new affirmation which deals with undue influence contains a new defence and it is also true that it could have been dealt with in the original affirmation in opposition. However, I do not consider that it is too late now for this new defence to be raised in the new affirmation. I note that the hearing date for the substantive hearing has not yet been fixed. In any event, by reason of her 1st affirmation, there is an allegation by the 1st Defendant of non est factum which is a factual dispute.
18. Miss Cheng, counsel for the Plaintiff, has not committed the Plaintiff to an argument that the Plaintiff would be prepared to accept the factual allegation and to argue the originating summons on the matter of law only. Therefore, in any event, there would be a factual dispute which the Plaintiff would have to deal with.
19. As far as reasons for delay are concerned, the evidence of Mr Chan is that the 1st affirmation of the 1st Defendant was prepared in a hurry by himself over the weekend of 4 to 6 March 2000, he having only received instructions on the Saturday, 4 March. I have read the affirmation of Mr Chan filed on 31 May 2000 and it would appear to be the case that the 1st Defendant's solicitors at least believed that the 1st affirmation also dealt with undue influence, a defence which the 1st Defendant is now seeking to expound upon in her supplemental affirmation.
20. I am not prepared to assume on the present evidence that Mr Chan was simply paving the way for the 2nd affirmation when he refers in his affirmation to undue influence. His affirmation was made on 31 May, more than 2 months before the 2nd affirmation of the 1st Defendant. I assume therefore that the defence of undue influence had been in the mind of the 1st Defendant's solicitors when the 1st affirmation was drafted in a hurry over the weekend of 4 to 6 March.
21. Therefore although para.3 of the affirmation of Mr Chan could have been more clearly worded, I am not prepared to assume for present purposes that that was simply a logistic step to pave the way for a new defence which is in the 2nd affirmation, and therefore I am prepared to accept that the reason for the delay was by reason of a lack of awareness or acuteness of time on the part of the 1st Defendant's solicitors.
22. In any event, it would appear to me that no prejudice has been caused to the Plaintiff which cannot be compensated for by an order of costs. It is true that in the 1st affirmation of the 1st Defendant, there is no reference to undue influence as such but the prejudice that a litigant suffers when his opponent comes up by way of an amendment or new affidavit for a new defence is not in itself the sort of prejudice that can be called in aid when the Court considers whether in the exercise of its discretion to grant leave to file new evidence.
23. I would with respect refer to the words of Parker J in Barclays Bank v. Thomas [1979] Lloyd's Reports 505 to the effect that litigants are not precluded automatically from putting an alternative or inconsistent defence at a subsequent point in time. In my view, assuming that the Master was asked for leave to file a supplemental affirmation on the substantive part of the defence, I think she was entitled to do so, but even if it were to be the case that this is to be treated as a fresh application to me for leave, I would so grant leave.
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(Maria Yuen) |
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Judge of the Court of First Instance
High Court |
Representation:
Miss Yvonne Cheng, instructed by Tsang Chan & Wong, for Plaintiff
Mr Liu Man Kin, instructed by S K Lam, Alfred Chan & Co., for 1st Defendant
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