CHAN YEUK PING v. WANG WEI MING

HCMP 1744/2016

[2019] HKCFI 509

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1744 OF 2016

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DECISION

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1.  The issue before me is whether leave should be granted to the plaintiff (“P”) to file a further round of evidence in reply to the 2^ndaffirmation of the defendant (“D”) filed on 7 December 2018.

2.  The Originating Summons herein was issued on 11 July 2016.  P avers that on 27 May 2004, D executed as a trustee a trust deed (“Trust Deed”) in his favour as a beneficiary in respect of 100,000 shares in KensenTechnologies Limited (the “Shares”).  In early 2016, he decided to reclaim those Shares, but that he had lost the blank Instrument of Transfer which D had previously executed and delivered to him.  P avers further that despite demands, D has failed to execute a new Instrument of Transfer to him.  D has also failed to render any account in respect of the dividends and other profits of the Shares.  He therefore seeks by way of the Originating Summons, and in gist, an order that D do execute an Instrument of Transfer in respect of the Shares, furnish an account, pay damages as assessed, and other inquiry etc to be carried out.

3.  On 18 October 2016, the Originating Summons was heard before DHCJ Wilson Chan (as he then was).  D was absent and not represented.  An Order (the “18/10 Order”) substantially in terms of the Originating Summons was granted (in summary, that D do execute an Instrument of Transfer in respect of the Shares (§1), furnish an account (§2), pay damages as assessed (§3), and costs (§4)).

4.  On 6 August 2018, D took out an application (“Application to Set Aside”) for an order that the 18/10 Order “be set aside unconditionally by reason of irregular service of the process.”  The application is supported by D’s affirmation filed on that same day (“D/1^st”).  At paragraph 1 of D/1^st, D makes it clear that the only ground of his application is that “the Order/ Judgment was entered against me due to irregular or ineffective service.” 

5.  On 18 September 2018, and upon the joint application of the parties by way of a consent summons dated 14 September 2018, Wilson Chan J granted the usual directions for P to file evidence in opposition, D to file evidence in reply, and that “No further affidavit evidence be filed without leave of the Court.”  The hearing of the Application to Set Aside was then adjourned to a date to be fixed, which later turns out to be 12 April 2019.

6.  P filed his evidence in opposition on 4 October 2018.

7.  After an Unless Order, D filed his 2^ndaffirmation on 7 December 2018 (“D/2^nd”).  It is a 17-page document (excluding exhibits).  Therein, D says for the first time, amongst other things, that:

“ 5. As a matter of fact, these proceedings could have been saved … I would have signed the said transfer documents (providing the wordings do not cover matters exceeding my obligation under the concerned trust).

…

7. In the circumstances, I would take this opportunity to make clear I am not seeking to set aside paragraph 1 of the [18/10 Order].  I, by the present application, am seeking to set aside paragraph 2 to 4 of the Order with costs.”

D then goes into quite some details on various matters in purported reply to the evidence that P has filed in opposition.

Discussion

8.  The brief summary of the facts above shows quite clearly that P’s position has changed since D/1^st.  In this regard, I agree with the submissions that have been made on behalf of P.  From seeking to set aside the entirety of the 18/10 Order on the basis of defective service, D has now “made clear” that he only seeks to set aside paragraphs 2 – 4 of the 18/10 Order with costs.  D further says that the present proceedings could have been saved—hence raising an issue on the costs of the Originating Summons.  The issues are now different.  Before this change, there was no basis for P to adduce any evidence other than for the purpose of addressing the issue of service (even if such other evidence was available to him).  In my view, fairness clearly justifies me granting P leave to file a further round of evidence in reply.  D will not be prejudiced thereby.  P agrees that D can have the last word.  Further, the hearing is still two months ahead.

9.  Mr Chiu on behalf of D relies on Order 32, rule 11A(4), and submits that no exceptional circumstances exist.  In Dutfield International Group Co Ltd v Nine Dragon Investment Ltd [2013] 4 HKLRD 283, at §15, Bharwaney J observed that:

“ O 32 r 11A(4) does not apply to proceedings that are transferred by a master to a judge in chambers without any directions being made by the master to exchange evidence. Nor does O 32 r 11A(4) apply to interlocutory applications made to a judge who has adjourned the application for argument and has given directions for the exchange of evidence to be deployed at the adjourned hearing.”

10.  I agree that strictly, Order 32, rule 11A(4) has no application here.

11.  Relying on the observations made by Anderson Chow J in Waddington Ltd v Thomas Chan [2018] HKCFI 580 at §31, Mr Chiu submitsthat the same principle applies to situations like ours.  In my view, given the change of position by D, there are in any event exceptional circumstances which justify the granting of leave.  As I have said above, fairness really dictates the result.

Disposition

12.  I grant leave to P to file the draft affirmation of Anson Yang (as attached to the submissions of 12 February 2019 filed on P’s behalf) by close of business of 19 February 2019, and D to file his affirmation in reply (if any) within 21 days upon receipt.  No further evidence be filed without leave.

13.  I order that the costs of this application be in the cause of D’s Application to Set Aside.