CHAN SANG NAM t/a GA SHING TRANSOPORT CO v. CHAN SHIU HUNG t/a HING FAT TRANSPORTATION CO.

DCCJ 4728 of 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL JURISDICTION

ACTION NO. 4728 OF 2009

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BETWEEN

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DECISION

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Application

1.  The Defendant issued summons on 25^th June 2010 seeking, inter alia, leave to amend the Amended Defence & Counterclaim, and file the same within 7 days and leave be granted to the Plaintiff to file and serve the Amended Reply and Defence to Counterclaim within 14 days thereafter.  He also seeks leave to file the 2^nd supplemental statement of Chan Shu Hung within 7 days.  The Defendant did not give reasonable time for the Plaintiff to reply to the said draft witness statement.  

2.  The summons was heard before me on 7^th July 2010, 12 days before the trial proper.  The proposed amendment introduced a claim for extra damages in the sum of HK$612,121.95 and the said draft witness statement, consists of 3 pages in Chinese with annexure, was prepared in support of the extra claim.

3.  The Plaintiff objected to the Defendant’s application on essentially two points, firstly, there was no explanation for the inordinate and inexcusable delay.  Secondly, the proposed amendment does not hold water.

Discussion

4.  The ultimate question is whether the immovable trial dates fixed on 19^th to 22^nd July 2010 will be affected by the Defendant’s application, if so, whether there are exceptional circumstances justifying the variation of the trial dates.  

5.  Pursuant to Order 25, r.3(8) of the Rules of the District Court, Cap. 336, Laws of Hong Kong, the case management Conference (CMC), the pre-trial review (PTR) and the trial dates are “milestones dates”.  Order 25, r.3(3) provides that the Court shall not grant an application to vary the milestone date unless there are exceptional circumstances.  

6.  I note that the Defendant made no affirmation to explain for the delay and why the parties agreed to set down the case for trial during the CMC hearing held on 5^th February 2010.  Solicitors for the Defendant chose to explain at the hearing that the late amendment was due to late instructions. 

7.  In Big Island v Wu Yi Development HCA 1957/2005 dated 22^nd February 2010, Poon J noted that there was no affirmation to explain for the delay and why the parties had agreed to set down for trial.  He refused the late application for admission of documents on the ground that the late application, if allowed, would cause adjournment of trial, additional cross examination and extra cost. Those factors shall militate against such late application.   

8.  In the present case, from the Defendant’s summons, it is clear that the time required to complete the belated application is 21 days, which is well beyond the trial dates.  In short, the proposed amendment and directions, if allowed, would affect the immovable milestones dates and necessitate the adjournment of trial.  The next question is whether there are exceptional circumstances.

9.  While there was no affirmation to explain for the late application, Solicitors for the Defendant submitted during this hearing that the late application was due to “late instructions”.  It seems to me that the proposed amendment relates to information that could have been available much earlier and the nature of the proposed amendment relates to an extra amount of damages which has no merits.

10.  Ample opportunities were given to the parties to review the case from time to time.  The CMC was held on 5^th February 2010.  The Defendant was in breach of the representations given in the listing questionnaires filed for the purpose of the CMC hearing.   In the listing questionnaire, the Defendant’s handling solicitors confirmed that: “my pleadings are in order and require no amendment”; “it is appropriate in all the circumstances to set the case down for trial”.  Worse still, the Defendant did not indicate that there would be amendment of pleadings during the PTR held on 7^th May 2010.   And this application was not taken out until more than one month elapsed since the last PTR and was heard 12 days before the trial proper.  The only explanation is, “late instructions”, that not only requires an affirmation from the Defendant to confirm how diligent he was in providing information to his instructing solicitors, the Defendant is also required to establish exceptional circumstances. 

11.  I do not accept this bare assertion of late instructions.  Even if I accept that the late instructions caused this late application, it does not amount to exceptional circumstances justifying the variation of the trial dates.

12.  In short, the Defendant’s summons shall be dismissed.  Costs of and occasioned by the Defendant’s summons dated 25^th June 2010 was assessed summarily in the sum of $9,500 payable by the Defendant to the Plaintiff forthwith.