POOSAALA RAM PRASAD v. HONGKONG AND SHANGHAI BANKING CORPORATION LTD

HCA 279/2021

[2025] HKCFI 4818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 279 OF 2021

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BETWEEN

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DECISION

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I. INTRODUCTION

1.  Upon the Defendant’s Summons filed on 9 January 2025 (the “Summons”), on 19 August 2025, Master Dick Ho of the High Court made the following order (the “Master’s Order”):-

(1) Leave be granted to the Defendant to adduce expert evidence;

(2) Leave be granted to the Plaintiff to nominate his own expert; and

(3) Costs of the Summons be in the cause, save that the Defendant’s costs wasted as a result of the adjournment of the hearing on 6 May 2025 shall be paid by the Plaintiff.

2.  This is the Plaintiff’s appeal against the Master’s Order by the Plaintiff’s Notice of Appeal filed on 29 August 2025.

II. THE PLAINTIFF’S CLAIM AND DOCUMENTS ADDUCED IN SUPPORT

3.  The gist of the Plaintiff’s claim has been summarised by the Court of Appeal in its judgment handed down on 23 December 2022 in CACV 466/2021 [2022] HKCA 1876 at §§2-3, which I respectfully adopt here:-

“2. The plaintiff was the holder of a Premier account at the defendant bank. On 3 February 2021, he submitted an application for telegraphic transfer of HK$79,800 to a person in India with an account with Central Bank of India. On 5 February 2021, the defendant rejected the application because there was no existing arrangement enabling funds in Hong Kong Dollar to be remitted to Central Bank of India. The defendant sent a system-generated letter with the remark “No HKD Drawing” by post to the plaintiff’s correspondence address last known to the defendant. The plaintiff said he did not receive that letter or any other notice that his instruction for the remittance was not carried out.

3. The money to be remitted was, according to the plaintiff, for the document-processing and legal fees for the purchase of a prime property in Banjara Hills, Hyderabad, India, which he had agreed to pay by 10 February 2021. Because the funds were not transferred, the deal was cancelled by the vendor.”

4.  Therefore, the Plaintiff claims loss and damage suffered as a result of the cancellation of the deal.

5.  In support of the claim that there was the purchase (the “Purchase”) of the prime property (the “Property”), the following documents (the “Plaintiff’s Documents”) are pleaded and disclosed:-

(1) Document No. 1642 of 1964;

(2) Certificate of Encumbrance on Property, Certificate No. 727/2018; and

(3) First page of a Title Search Report.

III. THE DEEFNDANT’S DEFENCE

6.  For the present purpose, one of the defences raised by the Defendant is the Purchase did not exist as any legally binding agreement under the Indian law, and what the Plaintiff did was inconsistent with the Indian law and practice in relation to conveyancing of law in India and thus shows that he had no genuine intention to proceed with the Purchase, and therefore the Plaintiff suffered no loss as a result of the cancellation of the non-binding Purchase. In relation to that, the Defendant does not admit the authenticity of the Plaintiff’s Documents.

IV. ISSUES

7.  The issue, therefore, is whether the Purchase was legally binding under the Indian law and whether the Plaintiff’s conduct was consistent with the Indian law and practice in relation to a genuine sale and purchase of Indian landed property. If not, then the Plaintiff’s allegation of causation of loss would be defeated or at least significantly undermined, given that the Plaintiff would have much to prove in respect of the alleged loss when the subject Purchase was not legally bound to proceed to completion at any rate, or at least, the chance of completion of the Purchase would be undermined.

8.  For this issue in dispute, the Master’s Order identified the following issues for the expert evidence (the “Expert Issues”):-

(1) conveyancing law and practice in India; and

(2) whether there was a valid and binding agreement for the purchase of the Property under the Indian law.

9.  In this regard, I note the Plaintiff’s submissions, put in double negative terms, that he does not take the position that the Purchase was legally binding. However, as explained above, whether the Purchase was legally binding would be relevant to the chance of the completion of the Purchase, and in any event, the consistency or inconsistency of the Plaintiff’s conduct with the Indian law and practice in conveyancing would still be relevant.

V. ANALYSIS

10.  There is no dispute that Indian law is a matter for expert evidence and that the expert for the Defendant is qualified to give such expert evidence. The issue in dispute is the relevance of the Expert Issues.

11.  The Property is located in India. The governing law over immovable property is lex situs, which determines the formal and material validity of a conveyance of land: see Dicey, Morris & Collins on The Conflict of Laws (16^th ed) §§24R-068, 24-069, 24-080 and 24-081. Therefore, the governing law of the Purchase is Indian law.

12.  It is clear that the Indian law and practice is relevant to the determination of the legal validity of the Purchase. In fact, in his written submissions and oral submissions, the Plaintiff also tried to refer me to the Registration Act 1908 of India and the Transfer of Property Act 1882 of India as well as a case of the Supreme Court of India on the latter Act, but obviously it was not the proper way and the proper way to rely on foreign law is by way of expert evidence. Despite the Plaintiff’s own reference to the Indian law, the Plaintiff raises a few objections which I try my best to ascertain from his written and oral submission and shall deal with separately below.

VI. BREACH OF CONTRACT GOVERENED BY HONG KONG LAW

13.  The Plaintiff submits that in breach of contract, the Defendant failed to give him notice of “No HKD Drawing” and that the contract was governed by Hong Kong law and the failure happened in Hong Kong. Therefore, the Plaintiff submits that Indian law is unnecessary.

14.  With respect, the Plaintiff’s submissions do not detract the relevance of the Indian law and practice. Even if he were right that the contract was governed by Hong Kong law and the failure took place in Hong Kong, whether he suffered loss as alleged as a result of the cancellation of the Purchase is an issue that can only be determined with reference to the Indian law and practice. Even if the Defendant was negligent, if, however, the Purchase would not proceed in the first place, and to determine whether the Purchase would proceed, the legal-binding-ness of the Purchase would be a very material consideration, then there would not be any loss suffered as alleged.

15.  In conclusion, the Plaintiff’s submissions that the breach of contract was governed by Hong Kong law and the related submissions do not advance his appeal.

VI. PRESUMPTION OF SIMILARITY AND PLEADING POINT

16.  The Plaintiff also submits that the presumption of similarity between Hong Kong law and Indian law is sufficient for determining whether the Purchase was legally binding in the light of any absence of plea of non-applicability of the presumption and of what the Indian law is in the Defendant’s defence.

17.  In my view, the presumption is only an evidential tool when there is no evidence on the foreign law. Therefore, it has been held, and I agree, that a party taking the position that the presumption does not apply does not have to plead the non-applicability of the presumption: see Granville Technology Group Limited (In Liquidation) v LG Display Co Ltd [2023] EWHC 2418 (Comm) at §§21-25 per Foxton J.

18.  Further, it is not that without pleading of what the foreign law specifically is, no expert evidence on the foreign can be adduced. In the present case, it has already been put in issue that the Purchase was governed by the Indian law, and the “parties can reflect on their positions after the expert evidence has been obtained” in relation to the pleadings: see Shenzhen Futaihong Precision Industry Co Ltd & Ors v BYD Co Ltd & Ors [2019] 2 HKC at 175 at §61 per Lam VP, Kwan and Barma JJA. It happens often that after expert evidence is obtained, the parties would then amend their respective pleadings specifically to reflect what the foreign law is.

19.  In conclusion, I reject the Plaintiff’s submissions on the presumption of similarity and pleading point.

VII. THE DEFENDANT’S EXPERT’S LACK OF INDEPENDENCE

20.  The Plaintiff submits that the Defendant’s expert is not independent.

21.  However, he has adduced no evidence in support, whether in relation to the Defendant’s expert’s independence in general or any parts of his opinion specifically. On the contrary, the Defendant’s expert signed the declaration of duty to Court and a statement of truth. In the circumstances, I cannot see any basis for the Plaintiff to make such submissions. Any issue over the credibility of the Defendant’s expert can be left for trial, but it is another thing to say at this stage, without proper evidence, that the Defendant’s expert is not independent and so is not qualified as an expert.

VIII. RISK OF USURPATION BY EXPERT

22.  The Plaintiff submits that experts would usurp the Court’s function as the decision maker. I am unable to accept such submissions. The Court is experienced in dealing with expert evidence, and the Court always exercises its independent faculty in assessing expert evidence.

IX. DEFECTS IN THE PLAINTIFF’S EXPERT REPORT

23.  The Plaintiff submits that the Defendant’s expert fails to consider the Plaintiff’s evidence and is speculative. Assuming that the Plaintiff is right about all these, it would be a matter for him to discredit the Defendant’s expert at trial by way of cross-examination and submissions. It is not at this stage to bar the Defendant’s expert simply on these “defects”.

X. DISPROPORTIONALITY

24.  Lastly, the Plaintiff seems to submit that ordering expert evidence is disproportional, given that his claim was “valued at HK$79,800” only. It is not clear on what basis he says this. It is not so pleaded in his pleading, while on the contrary, the Plaintiff’ originally claimed for HK$81 million, which was struck out. At the hearing, he also seems to submit that his claim is not confined to this HK$79,800 only. If the Plaintiff’s claim is only HK$79,800, the case should be transferred to the District Court. In any event, given the materiality of the Expert Issues, the Court has to be assisted by expert evidence. The only issue arising from proportionality or disproportionality would then be whether a joint single expert should be appointed rather than each side appointing his or its own. This, however, is not a matter I have to deal with in the present appeal against the Master’s Order.

XI. CONCLUSION ON EXPERT EVIDENCE

25.  In the circumstances, I find that the Master’s Order was rightly made in respect of the expert evidence.

XII. THE PLAINTIFF’S APPEAL AGAINST COSTS ORDER

26.  The Plaintiff also appeals against the costs order in the Master’s Order in relation to the wasted costs of the adjournment.

27.  In general, an appeal against a Master’s costs order will not be allowed unless it is unreasonable or the Master erred in law: see Hong Kong Civil Procedure 2025 Volume 1 §58/1/6.

28.  As regards costs of an adjournment caused by a party’s medical condition, while “nobody would either want to be ill or have to pay for being ill”, I agree that the other party “should not only be forced to have an adjournment due to someone else’s illness but should be forced to swallow the costs of that adjournment as well.” In other words, it should still be the one that seeks the adjournment to pay: see Chan Fuk Tai v Chan Wai Ming [2020] HKCFI 2352 at §29.

29.  In the present case, assuming that the Plaintiff was indeed ill, I do not think the costs order against the Plaintiff was “unreasonable” or “erred in law”. Further and in any event, there is evidence suggesting that the medical condition of the Plaintiff was not such that the hearing had to be adjourned:-

(1) While the Plaintiff’s letter seeking the adjournment of the 6 May 2025 hearing alleged that he should have “immediate heart surgery” and needed “strict medical attention”, the attachments to the letter do not show when the operation would be performed, the urgency of the operation and the physical conditions of the Plaintiff as at date of applying for the adjournment.

(2) The Plaintiff, however, was able to attend a court hearing on 9 May 2025, just three days after 6 May 2025.

30.  In the circumstances, I find no ground to disturb the costs order in the Master’s Order.

XIII. CONCLUSION ON THE APPEAL

31.  For the above reasons, I dismiss the Plaintiff’s appeal, and order the Plaintiff to pay the Defendant costs of the appeal summarily assessed at HK$95,000, taking into account the Defendant’s failure to comply with paragraph 8 of PD14.3.