CHUNG WAH STEEL WORKS COMPANY LTD v. CHAN KWONG KWAN

DCCJ 4763/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4763 OF 2011

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D E C I S I O N

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1.  The defendant’s application to amend the Defence has to be considered in light of what transpired at the hearing before this court on 28^th February 2013.

2.  At the hearing on 28^th February 2013, the defendant sought leave to file and serve paragraphs 13, 14, 15 and 17 of the Supplemental Witness Statement of the defendant annexed to the defendant’s summons filed on 29^th January 2013.

3.  Paragraph 15 raised the issue of whether the plaintiff was the sole user of Unit E15 at the material time.

4.  Significantly, the plaintiff’s solicitors conceded the defendant’s application regarding paragraph 15 at that hearing.

5.  Paragraph 15 became paragraph 13 of the 2^nd Supplemental Witness Statement of the defendant filed on 5^th March 2013.

6.  This was fully responded to in the 2^nd Supplemental Witness Statement of Wong Kin Keung filed on behalf of the plaintiff on 14^th March 2013.

7.  Bearing in mind the earlier concession made by the plaintiff, clearly, no prejudice has been caused to the plaintiff by the present application to amend.  Further, any possible prejudice can be cured by giving leave to the plaintiff to file a further Supplemental Witness Statement within 21 days from today.

8.  Further, in my view, there is nothing to suggest that the application to withdraw the admission is not made in good faith.

9.  Further still, the merits of the plaintiff’s case on the issue is not so strong that I should refuse leave to amend on that basis alone.

10.  Accordingly, I will allow the application and shall now work out the precise form of the order with the assistance of the parties.

11.  (1) Order in terms of paragraph 1 of the Summons dated 11^th March 2013, save that in paragraph 2 of the Amended Defence (i) the reference to paragraph 2 of the Statement of Claim should be a reference to paragraph 1 of the Statement of Claim, and the reference to paragraph 2(a) and (c) of the Statement of Claim should be a reference to paragraph 1(a) and (c) of the Statement of Claim; and (ii) the sentence “In the premises, paragraph 1(b) is not admitted” be added before the last sentence beginning with the words. “The defendant avers that...”;

(2) Leave to the plaintiff to file and serve a consequential Amended Reply (if any) on or before 10^th April 2013;

(3) Leave to the plaintiff to file and serve a further Supplemental Witness Statement consequential to the Amended Defence on or before 17^th April 2013; and

(4) The Pre-trial Review fixed for 5^th April 2013 be vacated and re-fixed to be heard at 9:30 am on 17^th April 2013 (with 30 minutes reserved).

(Discussion re costs)

12.  In the circumstances, the order I make is that the costs of and occasioned by the amendment be to the plaintiff in any event, to be taxed if not agreed.  90% of the costs of the hearing today be to the defendant in any event, to be taxed if not agreed (with certificate for counsel).