XCHRX CHUN HON WAI AND ANOTHER v. JUNICHI TAKASHIMA

HCMP 6794/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 6794 OF 1998

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D E C I S I O N

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1. In the present proceedings, there is a Vendor and Purchaser summons issued by the Plaintiffs who were the purchasers regarding certain requisitions that they say the Defendant/vendor has failed to answer sufficiently or satisfactorily.

2. The vendor is the executor of the estate of the registered owner of the premises, and at least one of the requisitions, if not the main requisition, related to the title of the Defendant/vendor to sell the property in the light of a provision in the will that the property should not be sold until a beneficiary reached the age of majority.

3. On the other hand, the vendor/Defendant has raised a counterclaim against the Plaintiffs/purchasers in relation to certain interest which he says he incurred in discharging a mortgage prior to the scheduled completion date at the request of the purchasers.

4. Both parties have filed a number of affirmations, and in the case of the Plaintiffs, there is a 3rd affirmation of their solicitor, Mr. Tang Wing Tung Anthony, filed on the 24th March 1999.

5. It is this affirmation which is the subject matter of the present summons issued on behalf of the purchasers/Plaintiffs that the affirmation be struck out on the grounds that the contents of the affirmation are irrelevant and/or inadmissible and/or scandalous and/or argumentative and/or oppressive and/or "brow-beating practice" against the solicitors acting for the Defendant.

6. I have read the 3rd affirmation of Mr. Tang with some care and in my view, part of the language used in this affirmation is inappropriate to court proceedings. The language used is argumentative, emotive and sometimes bordering on the abusive. The fact that this deponent is a solicitor and therefore that this affirmation has been made by an officer of the court, in my view, exacerbates the situation. It is simply not worthy of an officer of the court to use the sort of emotive language which is used in this affirmation.

7. The rules are very clear that the purpose of an affirmation is to inform the court of the facts in support of a party's case and to inform the other party of the evidence which is sought to be adduced. I have indicated to both counsel who appeared before me today certain parts of this affirmation which are unusual. Fortunately, both counsel have been with respect sensible enough to agree that those parts which I have indicated should be expunged from this affirmation and therefore I would now hear the parties as to form of the order which I should make.