BANK OF CHINA (HONG KONG) LTD v. LEUNG WAI MAN AND ANOTHER

HCMP641/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.641 OF 2006

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R U L I N G

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1. This is the first hearing of this originating summons before a Judge of the High Court.  There are two applications before me.  First, there is an application by the plaintiff for leave to adduce further affidavit evidence out of time.  Secondly, the plaintiff seeks judgment for possession on a summary basis.  I will first deal with the application to adduce further evidence.

2. On 18 July 2006, Registrar Chan made an Order by consent that the hearing of the originating summons be adjourned to a date to be fixed to be heard by a judge in court with an estimate of three hours. 

3. The plaintiff was given leave to file and serve affirmations in reply to the defendants’ affirmations within forty-two days of the order.  No further affidavit was allowed to be filed without leave of the court.  No order for cross-examination of deponents has been made.  The time given to the plaintiff to file affirmations in reply expired on 17 October 2006.

4. The two affirmations which the plaintiff is now seeking to file out of time are affirmed on 15 November and 21 November 2006 respectively.  They are about four to five weeks out of time.  No explanation has been provided by the plaintiff as to why the Consent Order of Registrar Chan had not been complied with.

5. Moreover, it is plain from reading these further affirmations that the defendants should be allowed an opportunity to deal with the matters referred to in them.  In particular the 2^nd affirmation of Mr Luk referred to internal records of the plaintiff showing its dealings with the defendants, and the defendants’ defences filed in the previous high court action relating to the same subject matter.  Clearly such evidence is put in to demonstrate inconsistencies or lack of bona fides in the defendants’ defence.  Indeed that is what Mr Man submitted before me today.

6. In my view, had these affirmations been filed within time, the defendants would have had a proper opportunity of considering whether to answer these matters and in all likelihood they would be given leave to put in further affirmations.  This is particularly so since as matters now stand there is no order for cross-examination.

7. In my judgment the defendants have been prejudiced by the lateness in the filing of these further affirmations.  In the circumstances, I am only prepared to grant leave upon terms that an adjournment should be given so that the defendants can have proper time to consider their position.

8. I have considered the stated position of the defendants that they want to have the action disposed of as quickly as possible.  But in the circumstances, I do not regard it to be fair that they be deprived of a proper opportunity to respond to the further affirmations for the purpose of resisting the plaintiff’s summary application.

9. Accordingly, I would give leave to the plaintiff to rely on the further affirmations but on the terms that an adjournment be granted so that the defendants could have time to consider whether to seek leave to put in further affirmations in opposition.

[Defendants elected not to seek adjournment.]

10. Having made my decision earlier that I would allow the plaintiff leave to file and rely on the 2^nd affirmation of Mr Luk and the affirmation of Mr Ng and, having been explained their rights and whether the defendants would need an adjournment to address the further affirmations, the defendants have chosen not to avail themselves of that right.

11. In those circumstances, Mr Man sought and I allowed him to proceed with his application for summary judgment.

12. In this connection, I bear in mind the applicable principle as stated in Wing Hang Bank v Liu Kam Ying [2002] 2 HKC 57.  Despite Mr Man’s persuasive submissions, I am not satisfied that this is a suitable case for summary judgment.

13. For obvious reasons, since I am not prepared to grant judgment summarily, I should not say too much about the merits at this stage.  Suffice it to say that I am not satisfied that the misrepresentation defence relied on by the defendants is incredible or unarguably bad.

14. In my judgment, this is a clear case for trial and I am not persuaded that the defendants should be shut out summarily.

15. I therefore decline Mr Man’s application for judgment on a summary basis and I will hear the parties on the further directions that I should make.