WING HONG INVESTMENT CO LTD v. FUNG SOK HAN AND OTHERS

HCA 2075/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2075 OF 2009

____________

____________

__________

R U L I N G

__________

1.  The plaintiff seeks to amend paragraph 23(3) of the amended reply and put in a new paragraph 23A in the reply to raise the issue of limitation to damages for trespass to several disputed areas on the ground floor of the buildings.  Mr Yim opposes it and says that it is a new claim that has come too late.

2.  There is also an application to put in a second supplemental witness statement of a Mr Tsang.  That application is likewise opposed.

3.  Mr Chan says that the limitation defence is not a claim.  It is only a defence.  Mr Chan says that the issue of occupation has already been pleaded in paragraph 23(3) as it is an incident of ownership and ownership is already pleaded there.

4.  To understand the meaning and purport of the proposed amendments to paragraph 23(3) and the new 23A, I have to look at the statement of claim and the defence to counter-claim.  The relevant paragraph in the statement of claim is 1E which, in effect, pleads that by way of interpretation of the title deeds, the plaintiff is the owner of the exclusive right of occupation of the disputed areas on the ground floor.

5.  Paragraph 4 of the defence denies that. Paragraph 4(l) particularly pleads an alternative defence that the other tenants in common in the buildings have been paying the costs and expenses for the upkeep, improvement, repair and maintenance of, among other areas, the disputed areas on the ground floor.  Hence, the defendants further plead that they have suffered detriment therefrom and the plaintiff is estopped from asserting any right of exclusive ownership and/or use or occupation of the disputed areas.

6.  Paragraph 23 of the existing reply disputes paragraph 4 of the defence and counter-claim.  Paragraph 23(3) in particular pleads that the plaintiff has not stood by or encouraged the 2nd to 4th defendants to act to their detriment in the belief that any part or parts of the disputed areas were common parts and, on the contrary, the plaintiff has since 1959 or 1960 consistently claimed and exercised exclusive ownership on these areas.  No particulars have been pleaded on how the exclusive ownership has been claimed or exercised, nor is there any evidence of occupation save a few general statements that the plaintiff had all along been in exclusive occupation of all areas that they own the exclusive occupation right which includes the disputed areas.  Now the plaintiff wants to put in the words, “and occupation”, after the word “ownership”. 

7.  Then there is the proposed new paragraph 23A to plead limitation as a defence to damages for trespass.  Mr Chan addresses it as an incident of ownership.  He also submits that this amendment should be allowed so as to dispose of all disputes between the parties.  Mr Chan also applies to put in the second supplemental witness statement of Mr Tsang.  This witness statement, for the first time, provides details of occupation of each of three disputed areas at different times in the past plus the identities of their occupants.  Some matters referred to by Mr Tsang happened in the early 1960s or 1970s.  The difficulties of the defendants in dealing with this new witness statement need no elaboration. 

8.  Mr Chan has made it plain that the limitation plea is a defence to the defence and counter-claim for damages for trespass. The defendants claim such damages is in paragraph 31 of the counter-claim and thereafter.  The plaintiff has dealt with that counter-claim in paragraph 33 of the reply and thereafter.  Naturally, the limitation plea should be in paragraph 33 of the reply or thereafter.  However, if it is so pleaded, then it would stand out distinctly as a new ground of defence and it cannot be made on the first day of the trial as the defendants should be given an opportunity to deal with it.

9.  The plaintiff does not propose to plead it at or after paragraph 33 of the reply, but to put it in by amending paragraph 23(3) and a new paragraph 23A.  This may make the amendment look consequential to the plea of exercise of exclusive ownership since 1960.  However, the plea of exercise of exclusive ownership is not pleaded in paragraph 23 for raising the limitation defence, but to answer the defendants’ claim of payment of expenses for maintenance and upkeep of the disputed areas.  Hence, the limitation defence cannot be tacked on to the plea of exercise of exclusive ownership as the ownership plea has nothing to do with limitation.  The limitation point is in fact a new plea even if it is proposed to be inserted into and after paragraph 23(3) and not in or after paragraph 33.

10.  Since this is a new plea and the evidence to support it dates back for decades, I do not think fairness would allow it to be made now.  If it is to be made now, the defendants will need weeks, if not months, to tackle it.

11.  Furthermore, the matters that the plaintiff wishes to rely on now are not anything new or could not have been discovered till lately.  They are matters that were known to and could have been raised by the plaintiff since day one.

12.  Though dismissing this application may produce the result that the limitation defence will not be considered as part of the plaintiff’s defence to the claim of trespass to the disputed areas, the plaintiff can only have itself to blame in not raising it earlier on. 

13.  I therefore dismiss the application to amend save the year of “1959” to “at least 1960” in paragraph 23(3) of the reply. This amendment of year is not being objected to.  I also dismiss the application to put in Mr Tsang’s second witness statement.

14.  I order costs of this application be to the defendants with certificate for two counsel.