WONG SAI PONG v. WONG KIM BOR

HCA 390/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 390 OF 2006

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1.  This action was set down for trial with trial days fixed for 5 days commencing on 30 November 2010. However, by a late application shortly before trial the defendant (by original action) and the plaintiff (by counterclaim) applied to re-amend his defence and counterclaim and to seek specific discovery of documents. Fok J (as he then was) on 26 October 2010 granted leave to the defendant to re-amend his defence and counterclaim and to file and serve further witness statements. Because of the late amendments to the defendant’s pleading Fok J vacated the trial dates with costs against the defendant.

2.  One of the matters pleaded by the late amendments as set out in the defendant’s re-amended defence and counterclaim is that there was an implied term in the agreement that the property would be fit for occupation with the supply of water and electricity for residential purposes prior to the completion for sale and purchase (paragraph 14A).  It is the defendant’s case that there was no supply of water and electricity available on the property.

3.  Instead of also applying for specific discovery at the hearing before Fok J in October 2010, the defendant has by the summons dated 19 May 2011 applied for an order for specific discovery under O24 r.7 RHC as set out in the summons. 

4.  Paragraph 1 of the summons is a wide-ranging application for discovery.  The defendant seeks discovery of application form, supporting documents in support of application for grant of water supply effected on or before 5 August 2005, all correspondence between the Water Supplies Department and/or “such other authoritative departments” and the plaintiff or anyone acting on his behalf in relation to the grant of water supply to the property effected on or before 5 August 2005.

5.  The same wide-ranging application is made in respect of the electricity supply to the property by the summons but this has now been abandoned as I was informed by Ms Hui, for the defendant.

6.  Paragraph 2 of the summons seeks an order that the plaintiff do write to the Water Supplies Department requesting delivery of the said documents and by paragraph 3, the defendant seeks an order that the plaintiff do provide the defendant the copies of these documents.

7.  No satisfactory explanation has been provided to me as to why this application was not made at the same time as the application for the re-amendment of the pleading and for specific discovery of other documents made by the defendant in October 2010. 

8.  The solicitors for the plaintiff by a letter dated 24 May 2011 to the defendant’s solicitors made it plain that their client is no longer in possession of any of the documents in respect of which the specific discovery is sought and they also said that they were prepared to make an affirmation to that effect. 

9.  Mr Lau, for the plaintiff, has informed me that Mr Chan Choi Shing, who is the third defendant by Counterclaim and a director of Tecco Investment Ltd, the first defendant by Counterclaim which acted as agent for the plaintiff, is prepared to file an affirmation within 7 days from today that the documents are not in the possession, custody or power of Tecco Investment Ltd. Ms Hui has also accepted that the documents are no longer in the possession, custody or power of the plaintiff or Tecco Investment Ltd.HH

10.  It seems to me that as the documents are no longer in the possession, custody or power of the plaintiff or Tecco Investment Ltd the Court ought not to accede to this application. 

11.  I also consider that the application for specific discovery as sought is not necessary for disposing fairly of the cause or matter. 

12.  The relevant issue is whether at the time of the actual completion of the agreement water supply had been made available at the property. 

13.  By a letter dated 1 April 2011 the Water Supplies Department in the letter to the plaintiff’s solicitors stated that water supply to the property was effected on 5 August 2005.  

14.  On the plaintiff’s pleaded case actual completion could not have been prior to 5 August 2005.  Paragraph 11 of the amended statement of claim pleads that on 12 August 2005 the plaintiff’s solicitors delivered the title deeds and documents relating to the property to the defendant’s solicitors. However, on 26 August 2005 the defendant’s solicitors returned the title deeds and documents to the plaintiff’s solicitors stating that they had no further instructions to act for the defendant (paragraph 12).  And by paragraph 13 of the amended statement of claim the plaintiff pleads that the defendant has on that day wholly renounced the said agreement and absolutely refused to perform the same on his part. 

15.  It seems to me that the wide-ranging discovery sought by the defendant by this application is not necessary as it will serve no useful purpose on the issue.

16.  One of the underlying objectives of the rules under the Civil Justice Reform is to ensure that a case is dealt with as expeditiously as is reasonably practicable. Another is to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings (O1A r.1(b) and 1(c) of RHC).

17.  The trial of this action has, in my view, dragged on long enough.  The original trial dates have been vacated.  In my view, the trial of this action should not be delayed any further by the wide-ranging discovery as sought by the defendant.  As a matter of proper and effective case management, it seems to me that this application should be dismissed. 

18.  I dismiss this application.

19.  Costs of the application to the plaintiff, such costs to be taxed if not agreed.