XCHRX JINDAL EXPORTS LTD. v. WACO TRADING CO. LTD.

HCA 15404/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. A15404 OF 1999

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DECISION

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1. This is an application by the defendant for leave to file further affirmation for the purpose of the appeal by the plaintiff from the decision of the Master in dismissing the plaintiff's application for summary judgment. After hearing submissions from both sides, I dismissed the application with costs to the plaintiff and gave brief oral reasons for so doing. I now reduce my reasons into writing.

2. The affirmation in question is the 2nd affirmation of Wong Chun Yee of the defendant filed on 10 December 1999. It is common ground that the affirmation was filed with the Court before the O.14 hearing before the Master on 14 December 1999. It was, however, filed without leave. At the hearing, the defendant made an oral application for leave to file and use this affirmation, which was opposed by the plaintiff. After hearing arguments, the Master refused the application. In the affirmation of the defendant's solicitor in support of this application, it was said that, despite the defendant's request, the Master refused to record the application and the refusal in his notes of the proceedings. Mr. Gordon appearing for the plaintiff today, and who also represented the plaintiff before the Master, did not take issue with the contents of this affirmation of the solicitor.

3. In my view, what the defendant should have done is to appeal against the Master's refusal instead of taking out the present summons applying for leave to file the affirmation. An application which is similar to the present summons had been made to the Master and he had made a decision on it. It is procedurally wrong to renew that application instead of appealing against it. The fact that the Master had refused to note in his notes of proceedings the application for leave and the refusal is not a bar to an appeal.

4. I appreciate that initially the defendant might not see a need to appeal against the Master's refusal since the plaintiff's application for summary judgment had been dismissed. However, once the plaintiff appeals against the Master's dismissal, it will be for the defendant to cross-appeal against the refusal if it were minded to rely on the 2nd affirmation of Wong Chun Yee. I note that the plaintiff's notice of appeal was lodged very close to the last day for appeal. It may be that the defendant will not have adequate time to file a notice of appeal. If this is the case, it can apply to appeal out of time. There is on the face of it an explanation for the delay.

5. The case of Way Cheong Co. Ltd v. Kiu May Construction Co. Ltd [1983] 2HKC 403 and the passage in The Supreme Court Practice 1997 vol. 1 para. 58/1/3 on the Court's power to admit new evidence on an appeal from master are not relevant for our present purpose. The circumstances of the present case is different from those in the Way Cheong case. In this case, the so-called "new" or "fresh" materials were available to and were before the Master at the hearing below, but they were not allowed to be admitted and used as a result of a conscious decision made by the Master after hearing arguments. While there is no doubt that the Court has power to admit new or fresh evidence under O.58 r.1 RHC, the Court cannot invoke the power when the Master had already exercised his discretion on the same matter, short of an appeal.

6. The summons is therefore procedurally wrong and misconceived. Mr. Lam for the defendant , however, submitted that the Court could consider amending the summons so as to enable the application to proceed as an appeal against the Master's decision. That is inappropriate. For an appeal against master's decision, a notice to appeal is required. This cannot be achieved by a mere amendment of the present summons. At any rate, the defendant has not made a formal application to amend.

7. Alternatively, even if I were to err on the procedural point, I am of the view that the discretion ought not to be exercised to allow this 2nd affirmation of Wong Chun Yee to be admitted. There is no explanation in the supporting affirmation of the defendant's solicitor as to why the materials in this affirmation were and could not have been included in the 1st affirmation of Wong Chun Yee. The filing of repeated rounds of affidavits is to be discouraged in interlocutory proceedings, especially in summary judgment applications, for there should not be a mini-trial on affidavits. It is therefore for the party seeking to have a fresh round of evidence to justify it. The Court is not in a position to properly exercise its discretion where no explanation has been advanced for the introduction of a new round of evidence.

8. Mr. Gordon had also referred to the contents of this 2nd affirmation as being contradictory to those of the 1st affirmation of Wong Chun Yee. These observations are not without basis. However, I need not examine them in details at this stage partly for the reasons stated above and partly because I am not seized of the appeal itself.

9. For the reasons stated above, I dismiss the defendant's application with costs to be paid by the defendant to the plaintiff, to be taxed if not agreed.