LEUNG CHIU KWONG AND OTHERS v. WONG HIN WOON AND OTHERS

1748/1982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

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DECISION

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1. This is a partnership action due to be heard on 1st February. The hearing was estimated to last five days. There is quite a long history. Suffice it to say that in October 1982 the 9 defendants filed what only can be described as a holding Defence, and had they not done so on that day they would have been liable to suffer judgment by default. Since then, various steps in the action have been undertaken including the filing of lists of documents on both sides. Eventually, in the middle of 1984, the matter was set down for hearing and in due course the date was fixed for trial. On 11th January 1985 the defendants took out a summons to apply for leave to file an Amended Defence and Counterclaim and another to apply for leave to vacate the hearing date. The matter came before me as the trial judge on the application to vacate some two days ago and I was told that there was due to be heard today an application for leave to file the Amended Defence and Counterclaim and I indicated the two applications should be brought before me this afternoon, as has been done. It is enough to say that if leave to file the Amended Defence and Counter-claim is granted it will necessarily result in an adjournment of the trial for a variety reasons not the least of which would be need for the plaintiffs to file an amended Reply. There would also need to be further discovery and, no doubt, further preparations for the hearing. Indeed it would not surprise me if had I not acceded to the defendant's applications if I were to be faced with an application for adjournment by the plaintiffs.

2. It is quite extraordinary that this application should be made so late in the day because on the defendant 's own showing as revealed in the affidavit of LEE WING KEUNG Although it had been thought for reasons of economy unnecessary to seek the advice counsel before November 1984, in November 1984, Mr. Cheung advice was sought and he indicated then that 5 days would be inadequate or the hearing and that it was necessary for there to be amendment of the pleadings. The summons was not taken out until 11th January this year. By now, of course, substantial costs have been incurred with a view to the hearing taking place on the 1st February. Counsel has been retained. Ho doubt all the pre-trial preparations on the part of plaintiff have been carried out on the basis of the pleadings as they stand. It is only with some reluctance that I have decided to accede to both of Mr. Cheung's applications and only because it seems to me that it may be the case on the revised pleadings that there are substantial issues which ought to be determined in the interest of doing justice between the parties. But I am prepared to accede to the applications only if stringent terms are complied with. Therefore, I give leave to the defendants to file the Amended Defence and Counterclaim in the terms of the draft submitted to me today. I also vacate the hearing date for the 1st February. I stand over the trial of this action to a date to be fixed. I order that the trial of the action to take place at the earliest date possible subject to further directions. The first direction is that filing and service of the Amended Defence and Counterclaim be dispensed with. The second is that the plaintiff file a reply to the Defence to Counterclaim in 14 days. The third is that filing of a Rejoinder, if necessary, be within 7 days thereafter. Each party shall file a list of documents within 7 days of the close of pleadings and there will be mutual discovery within 7 days thereafter. The matter is to be but on the fixed list with an estimated hearing time of 10 days. There shall be liberty to apply. The terms which I impose upon the defendants are these :