STAR GLORY INVESTMENT LTD v. CHASE EAGLE DEVELOPMENT LTD

HCA3362/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.3362 OF 2002

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J U D G M E N T

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1. This is the pre-trial review hearing of a trial of an action which is to come on on 2 August. The case is a simple one where the plaintiff sues for the recovery of a loan and the defence is it is an illegal loan because of the breach of the Money Lenders Ordinance. That is the narrow scope of the case.

2. I have now before me a substantial, a last minute application by the defendant which seeks : (1) to add new parties; (2) to substantially introduce a new defence bringing in matters about joint venture and Limitation Ordinance that would inevitably result in this trial being aborted and with the trial date being vacated. I have on the other side an application by the plaintiff to put its house in order.

3. I will deal first with the defendant's application under its Summons dated 5 July which was really yesterday. This late Summons shows the extraordinary nature of the present application. The Summons insofar it seeks to bring in new party is much too late and I am not satisfied that it is necessary. The same also goes for the application to amend. What is shown in green in the proposed amendment could have and should have been made a long time ago. The affidavit in support did not give any explanation as to why the application could not be made earlier. I can only conclude and I have no doubt that this is an application made last minute in order to gain more time for the defendant and to delay the trial of the action.

4. In the well-known case of the House of Lords in Kettlemen, the House of Lords said that the previous liberal approach to amendment now being very much tempered by the consideration of the prejudice that would be caused to the plaintiff especially for example when it is a last minute amendment to plead a technical defence such as limitation. All the sentiments expressed in the Kettlemen case can equally apply to this. Of course in the Kettlemen the application was made, I think, during trial whereas here it is just before trial but, nevertheless, I think the case management and the control of the court business now requires the court to be much more vigilant and demand a scrupulous adherence to the proper progress of the case. This has not been an application for amendment that should be allowed in the circumstances. I therefore do exercise my discretion and refuse the application except insofar as paragraph 8 in relation to the further witness statement of a Mr Tam Yiu Chung which I would have something to say later on.

5. Turning to the plaintiff's application - I think the plaintiff's application is a very simple one. So far as the re-amended reply to the amended defence of the defendant is concerned basically it seeks to put it in the statutory right is given to the lender to pray in aid sections 22(2) and 25 of the Money Lenders Ordinance to say that even if there may be technical breaches that it would be inequitable not to enforce the Loan Agreement. I therefore do allow the amendment except with the deletion of paragraph 3(d) because it seems to me that it is wholly irrelevant and unnecessary.

6. So far as the application for the three new supplementary witness statements is concerned, two of them, that is the witness statement on pages 46 to 49 of the bundle of 3 February as well as the supplementary witness statement of Leung Chi Yan of 19 February they had already been in the trial bundle for some time except that technically that I should give leave for their being allowed in. The Xu Ying Hao's second supplementary witness statement, in the light of the amendment that had been made to the reply, obviously should also come in except with the deletion of paragraph 3(iv) which should go out.

7. As for the defendant's need to serve further witness statement in reply to any of the three witness statements that had now been allowed in, in the absence of knowing what Mr Tam Yiu Chung is going to say I do not propose to make any order under paragraph 8 of the defendant's Summons but the defendant shall have liberty to apply should they find it necessary to respond to the new witness statements that are now being allowed in and I would suggest that the parties can liaise on this and, if necessary, the additional witness statement further to be relied on by the defendant can come in by consent.

8. So far as costs of today is concerned, it seems to me, having regard to the totally failed Summons of the defendant and the fact that the plaintiff's application for amendment and witness statements are largely technical, that the substantial costs of today should be given to the plaintiff rather than making separate order of costs. It seems to me that the proper order for costs should be in relation to all the matters dealt with today that the plaintiff should have half of the costs incurred against the defendant.