LEUNG FU MAN t/a LEUNG KING KEE v. WAT CHI HUNG t/a LEUNG KEE POULTRY CO

DCCJ 6465/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 6465 OF 2003

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DECISION

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1. This is the plaintiff’s application to re-amend the statement of claim. The defendant objects to the application. One of the grounds of objection is that the original claim is for an outstanding debt of $242,000 for the period up to 31.7.2000. But the proposed re-amended statement of claim extends the period of claim to beyond 31.7.2000 to 15.1.2003. The alleged outstanding debt between 31.7.2000 and 15.1.2003 is a new cause of action which is now time-barred.-

2. Under the amended statement of claim (dated 15.11.2003) the plaintiff claims the sum of $242,000.  The gist of the claim is as follows:-

“3. The Plaintiff began to trade with the Defendant for the poultries since 1999. When the Plaintiff received the instructions from the Defendant, it would deliver the requested poultries according to the Defendant’s instructions.

4.  Pursuant to the mutual agreement between the Plaintiff and the Defendant, the Defendant would pay the Plaintiff.  Until May of 2002, the Defendant totally owed the plaintiff HK$717,506.26.  The Defendant made several repayments.  However, till now, the Defendant did not settle HK$242,000.00.”

3. In the reply and defence to counterclaim, under paragraph 4(a), the plaintiff states:-

“(a) …… The Plaintiff avers that the total transactions dealt with the Defendant up to 31 July 2000 were in the total sum of HK$717,506.26. The Defendant made the following payments to the Plaintiff on various dates for settlement of the goods sold and delivered incurred before 31 July 2000.

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Total payments for settlement of debt incurred before 31/7/00: HK$475,506.26

In the circumstances, the outstanding amount due from the defendant to the plaintiff for poultries sold and delivered by the plaintiff to the defendant as at and up to the end of April 2002 was HK$242,000.00 (i.e. HK$717,506.26 – HK$475,506.26).”

According to paragraph 4(a), the total transactions dealt with the defendant up to 31.7.2000 were in the sum of HK$717,506.26.  The total payments for settlement of debt incurred before 31.7.2000 were in the sum of HK$475,506.26.  Therefore the alleged outstanding due from the defendant to the plaintiff in the sum of HK$242,000 was in respect of transactions dealt with the defendant up to 31.7.2000.

4. Under paragraphs 4 and 5 of the proposed re-amendment statement of claim, the plaintiff set out the proposed re-amendment:-

“4. Pursuant to the mutual agreement and arrangement between the Plaintiff and the Defendant, the Defendant would pay the Plaintiff for the purchase prices of the poultries sold and delivered. Until May of 2002, the Defendant totally owed the Plaintiff HK$717,506.26. The Defendant made several repayments. However, till now, the Defendant still did not settle HK$242,000.00. The total transactions made between the Plaintiff and the Defendant up to 30 September 2000 were in the total sum of $1,940,596.44. The Defendant made certain payments by way of cheques and cash to the Plaintiff on various dates for the settlement of the poultries sold and delivered incurred before 30 September 2002 in the total sum of HK$1,697,476.44 particulars whereof are shown as follows:-

Date	Amount Due	Total Amount	Amount Paid	Cheque
	(Breakdown)	Due (HK$)	(HK$)	No.
	(HK$)
………………………………………………………………………………………………………………………………………………
Total	$1,940,596.44	$1,940,596.44	$1,697,476.44	$243,120.00

5.  In the circumstances, the outstanding amount due from the Defendant to the Plaintiff for poultries sold and delivered by the Plaintiff to the Defendant as at 16^thJanuary 2003 was HK$243,120 (ie HK$1,940,596.44 – HK$1,697,476.44).”

5. By saying in the proposed re-amended statement of claim that the total transactions made between the plaintiff and the defendant up to 30.9.2002 were in the total sum of $1,940,596.44, the plaintiff intends to claim for outstanding balance in respect of transactions beyond 31.7.2000.  In the amended statement of claim he only claimed for the transactions up to 31.7.2000.  Thus in the proposed re-amended statement of claim he is claiming for an outstanding balance of debts for transactions dealt with between the parties beyond 31.7.2000, to 30.9.2002.  So he is claiming for transactions which he did not claim in the amended statement of claim.  The claim for transactions dealt with under this period, namely, from 1.8.2000 to 30.9.2002, is now time-barred.  He cannot succeed in the claim for transactions done during this period. Therefore I will not allow the application for re-amendment to include claims of transactions beyond 31.7.2000.

6. The defendant admits that it has been 9 years since the plaintiff last amended his Statement of Claim and 5½ years since the aborted trial in January 2007.  The plaintiff has been inactive since the aborted trial.  This inaction has led the defendant to think that he had no intention to bring the proceedings to trial.  Prejudice has been caused to the defendant and a fair trial is not possible to the defendant: there is a loss of two significant factual witnesses due to long lapse of time.  It is based on the original pleadings, the defendant prepared for his case and collected evidence.

7. The application for re-amendment to the statement of claim cannot make the plaintiff lose his witnesses.  Based on the original pleading, the defendant prepared his case.  Now that the re-amendment of the statement of claim is only confined to the originally pleaded cause of action, there should be no problem with the documentary records.  The defendant must have all the documentary records for his defence prior to the aborted trial in 15.1.2007. So there should not be any problem in this respect.

8. I allow the application for re-amendment of the statement of claim, to cover transactions dealt with between the parties up to 31.7.2000 only.  Transactions dealt with between the parties beyond 31.7.2000 in the proposed re-amended statement of claim are not allowed.