CREATIVE GROUP PROPERTY MANAGEMENT LTD v. CROWN HONOR LOGISTICS (HOLDINGS) LTD AND ANOTHER

DCMP 1146/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1146 OF 2010

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BETWEEN

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DECISION

Introduction

1.  This is a dispute between the parties on a certain area of parking space (“Space”) in front of the cargo lifts of the G/F of Kwai Wan Industrial Building, Kwai Chung (“Building”). The Plaintiff is the manager of the Building and it alleges that Defendants have trespassed into the Space by allowing a MGV No. LA260 and 2 forklift trucks, all owned by the 1^st Defendant, parked and left unattended at the Space since about 20 April 2010. The Plaintiff asks for an Order that Defendants deliver vacant possession of the Space to the Plaintiff and be restrained from occupying or trespass the Space.

2.  The case has been fixed for trial before me which will start next Monday on 5 March 2012 for 2 days.

3.  Before me is an urgent application made by the 1^st Defendant by way of summons dated 27 February 2012 for leave to file and serve: (1) a supplemental witness statement of its director, Chan Chi Wah (“Chan”); and (2) a witness statement of a new witness called Lau Tak Wah (“Lau”). In these witness statements, new evidence is attached including (a) a building plan of the G/F of the Building approved by Building Department on 30/2/1981 (“Defendant’s plan”); (b) some photographs showing the entrance and the G/F of the Building allegedly taken by Lau on 24 February 2012; (c) 2 letters between the 1st Defendant’s solicitors and a surveyor on the Defendant’s plan (“Surveyor’s Letters”).

4.  However, this is not the end of the 1^st Defendant’s application. Two sets of trial bundles were earlier on lodged with this court by both the Plaintiff and the 1st Defendant for the purpose of the trial, despite an order made by a master on 26 January 2012 which provides that it should be the Plaintiff who prepared the trial bundles. It turned out that the reason for the 1st Defendant to put in their own bundles was because the 1st Defendant attempted to “disclose” 2 invoices allegedly issued by the 1st Defendant to Billion Profit Properties Limited (“Billion Profit”) dated 30 March 2010 and 29 April 2010 (“the said 2 invoices”) respectively. According to the 1st Defendant, Billion Profit hired the MGV from the 1st Defendant and had control of the MGV at all material times.

5.  Yet, the said 2 invoices were never included in the 1st Defendant’s List of Documents.

6.  I am loath to be blunt, but such an attempt to put in undisclosed documents by the 1st Defendant in the way described above is not commendable.

7.  Be that as it may, Mr. Lau, Counsel for the 1st Defendant, upon taking instructions from those instructing him, applied forthwith for leave to amend the 1st Defendant’s summons by adding a paragraph praying for leave to file and serve a supplemental list of documents containing the said 2 invoices.

8.  Mr. Lau for the Plaintiff has very fairly and helpfully agreed that the Plaintiff would take no issue on the late amendment of the 1st Defendant’s summons and further indicated that he was prepared to argue on the said 2 invoices today.

9.  Thus, today’s application of the 1st Defendant becomes substantially this: to adduce new evidence of (1) the photographs; (2) the Defendant’s plan and the Surveyor’s Letters; and (3) the said 2 invoices.

The photographs

10.  An application to adduce new evidence just 1 week before the trial is no doubt belated. Mr. Lau for the 1st Defendant agrees that some explanations for the lateness should be given by the 1st Defendant to the court. But he says that no explanation was provided by Lau in his witness statement. And he does not have instruction as to the reasons of lateness.

11.  As to the relevancy of the photographs, Mr. Lau for the 1st Defendant submits that the photograph showing the carpark regulations and carpark fee is relevant to the issue of whether an injunction should be granted against the 1st Defendant, should this court found the 1st Defendant have control of the MGV and/or forklift trucks at the end of the day. Mr. Lau does not offer any substantial submission on why the rest of the photographs are relevant save that they may give the court an idea of how the carpark looks like.

12.  Mr. Lau for the Plaintiff replies that the photographs are of little value to the issues of this case. He further says that by relying on the photographs, the 1st Defendant is actually raising a new defence that the MGV entered the carpark with permission.

13.  There is no doubt that the application was made late and no reasonable explanation was offered by the 1st Defendant on the lateness. Save from the photograph showing the carpark regulations and the carpark fee, I cannot see the relevancy of the rest of the photographs attached to the witness statement of Lau.

14.  But I am persuaded by Mr Lau for the 1st Defendant at this stage that the photograph showing the carpark regulations and carpark fee may be relevant when this court considers whether an injunction should be granted. In a fair and just resolution of the dispute between the parties, I think this photograph should be allowed to put in as evidence. It will be left to the court to decide how much weight should be attached to it at the end of the day.

Defendant’s Plan and Surveyor’s Letters

15.  Mr Lau for the 1st Defendant submits that the reason for lateness in adducing the Defendant’s plan is set out in para 2 of Lau’s witness statement, ie he received the instructions to study the Plaintiff’s documents only on 20 February 2012. Mr. Lau agrees that admission of the Defendant’s plan goes hand in hand with the Surveyor’s Letters, ie if the Defendants’ plan should be allowed in, then so should the Surveyor’s Letter, and vice versa.

16.  Mr Lau says that the Defendant’s plan and the Surveyor’s Letters are relevant because they can show the common area of the G/F of the Building.

17.  Mr Lau for the Plaintiff argues that the Defendant’s plan does not relate to the issues of this case. The Surveyor’s Letters is hearsay evidence. It is also expert evidence but leave was never obtained by the 1st Defendant to adduce such expert evidence.

18.  It is the Plaintiff’s case that the area coloured pink in a carpark layout plan attached to the amended Statement of Claim (“Plaintiff’s plan”) is the “Space” as defined in the Amended Statement of Claim. The Space, the Plaintiff says, is part of the common area. It is also the area which the MGV and forklift trucks allegedly occupied.

19.  It is true that the Plaintiff’s carpark plan, on the face of it, does not bear the signature of the Building Department (the Defendant’s plan was signed by the Building Department), but it has been registered with the Lands Registry with a memorial no. TW223689 on 25 June 1981.  The Plaintiff’s plan was dated 25 April 1981 and thus posted-dated the Defendant’s plan (dated 20 Feb 1981). The difference between the 2 plans in so far as the Space is concerned is this. In the Plaintiff’s plan, 2 carpark spaces seemed to have marked on the floor with the words “goods van temporary occupation space” written on it; whereas in the Defendant’s plan, there was no such marking.

20.  After considering all submission, I reject the 1st Defendant’s application in relation to the Defendant’s plan and the Surveyor’s Letters on the following grounds.

21.  First, I do not accept the explanation for this belated application provided by the defence. I am of the view that the 1st Defendant has been given ample time to investigate into the Plaintiff’s carpark plan and applied for leave to adduce new evidence, if it so wished, well in advance. The Plaintiff’s carpark plan was disclosed to the 1st Defendant as early as April 2011. At that time, the Plaintiff’s carpark plan was attached to the Originating Summons as well as the 1^st Affirmation of Kwong Kam Shan.  This is the first opportunity avail to the 1st Defendant to carry out an investigation into the Plaintiff’s carpark plan and to raise objection to it. The 1st Defendant has not done so by its affirmation in reply. Then, by way of a consent summons dated 27/5/2011, the 1st Defendant even consented with the Plaintiff to let the Plaintiff amend the Statement of Claim by attaching the same plan with the Statement of Claim. In fact, Master Ivan Wong has by his order dated 27/10/2011 had given directions that the 1st Defendant was to take out all interlocutory application by 3/11/2011. No such application to adduce such new evidence was made until this summons. Further, in all its questionnaires filed for CMC, the 1st Defendant never indicated that it wished adduce new evidence as such. In fact, all along, the 1st Defendant indicated to the Master below that it has only 1 DW, namely Chan and there was no further interlocutory application. The questionnaires were respectively dated 25/7/2011, 21/10/2011 and 11/1/2012. It is thus clear that the 1st Defendant has not made good use of all the opportunities made avail to it to take out this application well in advance. It must then bear the consequence of its own inactiveness.

22.  On the other hand, having compared the 2 plans, I do not see the relevancy of the Defendant’s plan to the issues of this case because there is no dispute that the Space was and still is part of the common area of the Building. The Defendant’s plan, even if signed by the Building Department, cannot help to advance the 1st Defendant’s defence further, for the main defence of the 1st Defendant is that the DMC does not bind it and that it did not have control of the MGV and forklifts in question.

23.  I thus refuse to let the 1^st Defendant put in the Defendant’s plan and Surveyor’s Letters.

The Said 2 Invoices

24.  Mr Lau for the 1st Defendant concedes that no instruction was given to him as to why the said invoices were disclosed at such a late stage. All he can confirm is that the said 2 invoices were included in the Defendant’s trial bundles served on the Plaintiff only on 28 February 2012 (which is 3 days ago).

25.  The relevancy, Mr Lau says, is clear, ie to show that the MGV was rented out to Billion Profit. He adds that an application was made to join Billion Profit as Third Party before the Master below on 26 January 2012 but the application was refused. No attempt was ever made by the 1st Defendant to subpoena the relevant staff of Billion Profit to be a witness in the trial.

26.  Mr Lau for the Plaintiff objects and says that the said 2 invoices are the 1st Defendant’s documents all along and they did not ever try to disclose them earlier. When they did disclose them, they did so through the back door by inserting them into their trial bundles. The Plaintiff got the invoices only on 28 February 2012 and was left with no time to investigate the matter further.

27.  There is little doubt that the said 2 invoices must be relevant to the issues of this case. But the point is: they have been within the possession and custody of the 1st Defendant all along. As Mr Lau for the Plaintiff has rightly pointed out, they are the 1st Defendant’s documents. The 1st Defendant has ample time and opportunity to disclose them, yet it did not make use of the time. In my view, at the latest and at the very least, when Master below refused its application to join Billion Profit on 26 January 2012, the 1st Defendant should have grasped the opportunity to disclose them. It would not be fair to the Plaintiff to let the 1st Defendant put in the said 2 invoices at such a late stage when the 1st Defendant should have all the time to do so much earlier.

28.  I thus refuse this part of the 1st Defendant’s application.

Conclusion

29.  Accordingly, I grant leave to the 1st Defendant to adduce the photograph showing the carpark regulations and carpark fee only but dismiss the rest of the 1st Defendant’s amended summons. I direct that this photograph be put in the trial Bundle of Documents and be paginated as p86. For the avoidance of doubt, as only this photograph is allowed to be put in, I do not see the need for Lau’s witness statement for the purpose of the trial.

30.  Since the 1st Defendant’s application is substantially not allowed by me, I cannot see why the 1st Defendant should not bear the costs of today. Thus, I order that costs of today’s hearing be awarded to the Plaintiff in any event, to be taxed if not agreed.