DYNAMIC MATRIX LTD v. WONG HOI YAN BIBIANNA

HCA 2205/2019

[2022] HKCFI 280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2205 OF 2019

____________

____________

______________________

REASONS FOR DECISION

______________________

1.  This is the defendant’s application for leave to adduce new evidence for the upcoming hearing (on 15 February 2022) of her appeal from the order of Master Dick Ho dated 29 December 2020 granting summary judgment to the plaintiff. At the conclusion of the hearing, the defendant’s application was refused with costs.

2.  The defendant sought leave to adduce her draft 3^rd affidavit and accompanying exhibits of over 200 pages on 18 November 2021.

Procedural history

3.  The relevant events are as follows:

(a)  the writ was issued on 28 November 2019;

(b)  on 22 July 2020, the plaintiff took out an amended summons seeking summary judgment under RHC Order 14;

(c)  the Order 14 application was supported by an affirmation of Pong Wilson Wai San dated 15 July 2020;

(d)  on 16 September 2020, the defendant who then was acting in person filed 2 affidavits, respectively “D 1^st” and “D 2^nd” in opposition;

(e)  on 26 November 2020, Messrs Littlewoods filed a notice to act for the defendant;

(f)  on 22 December 2020, a summons, inter alia, to amend her defence and counterclaim was taken out;

(g)  on 29 December 2020, Master Dick Ho adjourned the defendant’s amendment application sine die, with liberty to restore and granted summary judgment to the plaintiff;

(h)  Littlewoods ceased to act for the defendant on 12 January 2021 when the defendant filed a notice to act in person;

(i)  on the same day, she took out a notice to appeal the Master’s Decision;

(j)  on 3 February 2021 Messrs KW Luk & Co (“KWL”) filed a notice to act for the defendant;

(k)  the present summons was taken out on 18 November 2021 seeking leave to adduce the defendant’s 3^rd affidavit and the accompanying exhibits into evidence.

This application

4.  It is common ground that the only issue that arises is whether the conditions laid down in Ladd v Marshall [1954] 1 WLR 1489 are satisfied, the conditions being that:

(a)  the evidence could not have been obtained with reasonable diligence for use at the hearing below;

(b)  the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and

(c)  the evidence must be such as is presumably to be believed.

5.  So far as the 1^st condition is concerned, it appeared to the court that the defendant’s defence discernible from her 3^rd affidavit is no different from that already advanced in her 1^st and 2^nd affidavits, namely, that the agreement reached with the plaintiff comprised 3 parts and that the loan agreement was but one part of the overall transaction. Further, the matters canvassed in the 3^rd affidavit are matters that plainly were in the defendant’s possession, custody or control at the time the matter came before the Master in December 2020 (“the December hearing”).

6.  In response to the court’s question as to what was said to be unavailable at the December hearing, Mr Calvin Law, counsel for the defendant informed the court that the exhibits to the earlier affidavits were not before the Master. Those exhibits are said to include a key document that supports the defendant’s case of an overall agreement comprising 3 parts.

7.  The document referred to is an email exchange on 4 February 2013 between Coman Sit (the plaintiff’s employee) and Dominic Tong (the defendant’s husband). It shows (a) an offer from the plaintiff for the acquisition of a 60% equity interest of BOM City Limited (a company operating children education businesses which held a lease of specified premises) for a consideration that comprised 3 parts and (b) confirmation (on behalf of the defendant) of acceptance of the offer with a request for sight of the 1^st draft when available.

8.  The loan agreement which was the subject matter of the summary judgment is dated 30 August 2013, some 5 months after the email exchange during which period negotiations as to the precise terms of the business transaction between the plaintiff and the defendant were evolving.

9.  Neither Mr Law nor KWL were at December hearing. At that time, the defendant was represented by Littlewoods and different counsel.

10.  Mr Avery Chan, counsel for the plaintiff who was at the December hearing, informed the court that the exhibits (including the key document) did form part of the hearing bundles and that he had the relevant page reference to that document.

11.  In those circumstances, the relevance of the email exchange was a matter for the Master.

12.  Mr Law acknowledged that all the matters set out in the defendant’s 3^rd affidavit were matters within the defendant’s possession at the time of the December hearing but added that they were scattered in different locations and unorganised. He submitted that as a litigant in person she did not know how to marshal them properly.

13.  However, between 26 November 2020 (a full month prior to the December hearing) and 12 January 2021, the defendant was legally represented. In fact, her then solicitors filed a summons on her behalf, inter alia, to amend her defence and counterclaim.

14.  Pausing there, one would have thought it evident that if an amendment was considered necessary, it would have been in the context of having reviewed the defence, including what had been set out in the defendant’s 1^st and 2^nd affidavits. It is telling that no application was made to file further evidence in support or to seek an adjournment of the December hearing in order to do so.

15.  The fact that the defendant may be dissatisfied with the advice she was given at the time is not a matter which concerns her present application nor would it excuse compliance with the Ladd v Marshall conditions.

16.  Since the defendant is unable to show that the Ladd v Marshall conditions have been satisfied, her application must fail.