FISCALINK INTERNATIONAL LTD AND ANOTHER v.U YU SUM ALEX AND OTHERS

HCA 5913/1997

[2018] HKCFI 1293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 5913 of 1997

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D E C I S I O N

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Introduction

1.  About twenty years ago, on 2 June 1997, the plaintiffs commenced the present proceedings.  They are now applying on the 6^th occasion to amend their Statement of Claim.  At the same time, a majority of the defendants[1] seek for the 2^nd time to strike out the claim against them.

Background

2.  Briefly, by the Indorsement of Claim, the plaintiffs sued the 1^st and 2^nd defendants only. It was said that the plaintiffs entered into an agreement in Chinese dated 15 January 1997 (the “Chinese Contract”) with them for purchase of the 1^st defendants’ shares in the 2^nd defendant and for various parcels of land in Peng Chau, New Territories registered in the name of the 2^nd defendant.  The plaintiffs paid a deposit of 15 million but the sale did not go ahead as agreed.  They sued, inter alia, for declarations that the Chinese Contract had been rescinded for misrepresentation, return of the 15 million, damages and costs.

3.  Both defendants contested the proceedings. By their Defence and Counterclaim dated 5 September 1997, they averred, among others, that the Chinese Contract related only to sale of the shares of 2^nd defendant in the 1^st defendants, but not the land.  The 1^st defendants counterclaimed against the plaintiffs for a declaration that the agreement had been wrongfully repudiated by the plaintiffs, forfeiture of the deposit of 15 million, costs and so forth.

4.  In 1998, the proceedings went on in the usual way. Parties worked on their pleadings, including seeking and providing further and better particulars thereof.  Usual directions for lists of documents, inspection and witness statements were obtained and given by the court.

5.  In 1999, the 2^nd defendant sought to strike out the claim against it.  A master acceded to the application.  The plaintiffs appealed.

6.  The appeal came before the Hon. Mr. Justice Chung on 1 November 1999.  By his Judgment on the same date, the learned Judge summarised parties’ disputes as follows.

 “The Plaintiff’s claim against both the 1^st Defendants and the 2^nd Defendant can be summarised as follows. A written agreement in Chinese dated 15 January 1997 (“the Chinese Contract”) was entered into by the Plaintiffs as assignees. At paragraph 24 of the Re-amended Statement of Claim :-

“It is averred that the Chinese Contract was made with both the 1^st Defendants and the 2^nd Defendant as vendors … for [the] sale and purchase of both the shares in the 2^nd Defendant and [some real properties].”

On the other hand, it is the Defendants’ case that only the 1^st Defendants were the vendors (or assignors) of the Chinese Contract. Further, the transaction between the Plaintiffs and the 1^st Defendants was purely a sale and purchase of shares in the 2^nd Defendant. Thus, there is no basis for the Plaintiffs to make the plea in paragraph 24 of the Re-amended Statement of Claim, or to commence this action against the 2^nd Defendant.

The Plaintiffs also contended that the relevant circumstances relating to their claims include the following. From about 1993 to about the date of the Chinese Contract, the Plaintiffs (which in this Judgement is also to include the individuals related to the first named Plaintiff) became acquainted with a Ms Kwok and a Mr Yam. Through them the Plaintiffs were able to obtain a number of real properties earlier. As a result the Plaintiffs trusted Kwok and Yam. Kwok and Yam made a number of representations to the Plaintiffs regarding some real properties in Peng Chau Island, including a representation that they would procure a company (later known to be the 2^nd Defendant) to become the owner of those real properties. The Chinese Contract was entered into by the Plaintiffs as a result of these representations. As stated above, in paragraph 24 of the Re-amended Statement of Claim, the Plaintiffs contend that that it was a sale and purchase of both the 2^nd Defendant’s shares as well as the said real properties. The Plaintiffs alleged that the Defendants’ representations were false and commenced this action. The Plaintiffs’ alternative case is based upon the Defendants’ breach of any implied term of the Chinese Contract to prove and show good title.”

7.  The Judge allowed the appeal and said that:

“…this Chinese Contract is an obvious model of inconsistencies, confusions and ambiguities.

The following parts of the Chinese Contract are consistent (at least arguably) with the Plaintiffs’ contentions that (1) the Chinese Contract was a sale and purchase of real properties as well as shares, and (2) the contracting parties included the 2^nd Defendant :-

(a) recital (c) stating that ‘the Assignors own all the titles to [the real properties]”,

(b) the parts of the following clauses stating in effect that there was to be an assignment of the real properties, namely, clauses (1), (2), (4) and (5). For example, there were references to the particulars of the real properties and the obtaining of the title deeds to those properties.

The parts of the Chinese Contract consistent with the Defendants’ case that it was a pure sale and purchase of shares not involving the 2^nd Defendant are :-

(a) the definition of Assignors (namely, the 1^st Defendants);

(b) recitals (a) and (b) stating in effect that the Assignors (that is, the 1^st Defendants) own the shares of the 2^nd Defendant and that they agreed to sell and the Plaintiffs agreed it to buy their entire shareholding;

(c) the parts of the following clauses stating in effect that it was a sale and purchase of shares, namely, clauses (1) and (2); and

(d) the way in which the Chinese Contract was signed respectively by the Plaintiffs and the1st Defendants.”

Further, the learned Judge also found at least the following issues render it impossible to strike out the claim of the plaintiffs against the 2^nd defendant at that stage.

“(a) … whether the Chinese Contract is so clear and self-explanatory that it is improper to consider the surrounding circumstances or factual matrix at the time of the Chinese Contract;

(b) if it is proper to consider such surrounding circumstances or factual matrix what were the relevant or admissible surrounding circumstances of factual matrix; and

(c) in either case, whether upon a true construction of the Chinese Contract, it is a pure contract for the sale and purchase of the 2^nd Defendant’s shares, or whether it is one for the sale and purchase of both the 2^nd Defendant’s shares as well as the land owned (or to be owned) by the 2^nd Defendant.”

8.  In about 2000, the plaintiffs further amended their pleadings, including joining 3 more defendants, Kwok, Yam and Guo. To cut short the long story, the plaintiffs made a number of alternative claims against these new defendants.  They could be agents for the 1^st and 2^nd defendants. They could also be principals themselves.  They made the misrepresentations as agents and/or principals.  Both the 3^rd and 4^th defendants contested the proceedings. The 4^th defendant further joined the 1^st defendants to counterclaim against the plaintiffs. However, as to the 5^th defendant, default judgment (for failure to file notice of intention to defend) was entered against him for 15 million with damages to be assessed and costs. 

9.  Thereafter, for about 6 years, no substantive steps[2] were taken by any of the parties within the proceedings.

10.  In 2006, the 5^th defendant issued his application to, inter alia, set aside the said default judgment.  Later, by consent, the application was allowed with costs to the 5^th defendant.  He then filed and served his Defence.

11.  In 2007, a majority of the defendants[3] issued their application seeking to strike out the plaintiffs’ claim for want of prosecution, abuse of process, and so forth.  Master Roy Yu decided not to strike out the plaintiffs’ claim but gave directions for further conduct of the proceedings, including discovery, exchange of witness statements and expert report.  Costs together with certificate for counsel were granted in favour of the defendants (except the 5^th defendant) against the plaintiffs.  Nonetheless, the learned Master specifically ordered (and/or warned) that:

“8) If the Plaintiffs do not comply with the time limit, the Defendants may apply for the Re-Re-Re Amended Statement of Claim to be struck off.”

12.  In 2008, a checklist hearing was held in March but the plaintiffs’ solicitors did not appear.

13.  From the court record, the proceedings were then further kept in abeyance^[4] for about a further 7 years until August 2015.

14.  On 5 August 2015, the plaintiff took out the 5^th application to amend their Statement of Claim.  Later, by consent, on 9 September 2015, it was withdrawn with costs to the defendants.  Then, on 19 November 2015, the plaintiffs issued their present amendment application.  At the call-over hearing, all defendants opposed to it.  Usual directions for affidavit evidence were given and the matter was adjourned for argument with 2 hours reserved.

15.  In 2016, both the 1^st named 1^st defendants and the 3^rd defendant filed their notices to act in person herein.  They left the same address for service in Canada.  It appears that both of them have not taken any step herein thereafter.

16.  On 17 October 2016, Master M. Wong heard the amendment application.  However, a few days before it, the 5^th defendant issued a striking out application.  Upon hearing submissions from the parties, the learned Master directed that:

“1. 原告人於2015年11月19日存檔的傳票及第五被告人於2016年10月12日存檔的傳票押後另定日期同時聆訊日期需參照大律師日誌, 及預留一天;

2. 是次有關上述兩張傳票的訟費, 包括其所引起的訟費, 浪費的訟費及一張大律師證書作訟費保留;

3. …

5. 第二及第四被告人須於2016年10月31日或之前提出剔除原告人對其訴訟的申請;

6. …”

17.  Later, on 31 October 2016, 3 further striking out applications were taken out by the 2^nd named 1^st defendants, the 2^nd defendant and the 4^th defendant respectively.

18.  I heard the amendment application and all 4 striking out applications on 7 November 2017 and 8 February 2018. Here are my decisions.

Principles on striking out 

19.  There cannot be any argument on the applicable principles after the Court of Final Appeal decision in Wing Fai Construction Co. Ltd v. Yip Kwong Robert (2011) 14 HKCFAR 935.  It is only how they are to be applied to the particular circumstances of each case that cause argument and different results.  For the present purpose, I set out the following extracted headnotes from the decision. 

“Principles on striking out (want of prosecution)

(5) Where the court was faced with an application to strike out for want of prosecution, the applicable principles are to be considered were:

(a) Striking out was a remedy of last resort and only where it would be plain and obvious to do so. Greater use should be made of other powers of the court, thus avoiding an “all or nothing” approach to dismissal…

(b) Abuse of the process of the court was the foundation for the exercise of the jurisdiction to strike out for delay…

(c) Abuse could take many forms. Mere delay would not suffice. Abuse included (per Birkett v James) inordinate and inexcusable delay causing prejudice to a defendant or contumelious conduct. It might, however, also take many other forms, such as “warehousing” of claims, inexcusable non-compliance with or wholesale disregard of an order of the court order or the rules of court and litigation anxiety…

(d) Regarding the “warehousing” of claims, that is where a plaintiff had initiated a number of actions against various people and, for tactical reasons or otherwise, selected which action to proceed with or not, for the “warehousing” to justify striking out it must be clear that the plaintiff was abusing the process of the court. Accordingly, where the “warehousing” of claims indicated that there was simply no intention to bring the proceedings to a conclusion or there was a “wholesale disregard” of the rules or court orders, abuse could be found to exist. The courts existed to assist parties to resolve disputes and they should not be used by litigants for other purpose…

(e) When considering the aspect of the delay in was important that it should be both inordinate and inexcusable, and that abuse was shown. It had never been the law that mere delay would be sufficient to justify an order to strike out…

(f) Where abuse was clearly demonstrated, for example where there was contumelious conduct on the part of the plaintiff, proceedings could be struck out even where prejudice to the defendant could not be shown. However in the majority of applications, the aspect of prejudice would often be extremely relevant…

(g) The conduct of the parties remained a relevant consideration. It was relevant both to the critical question of abuse as well as to the overall justice of the case. Post-CJR where all parties to the proceedings had the obligation to prosecute the proceedings and assist the court in furthering the underlying objectives, it would be highly relevant to consider any failure on the part of the parties. There was no place anymore for defendants to adopt the attitude of “letting sleeping dogs lie”…

(h) Pre-CJR, the courts’ attitude had very much been to look only to the position of the parties themselves. Post-CJR, the underlying objective of ensuring that the court’s resources were distributed fairly … was referable to the administration of justice. The court must bear in mind is own practical limitations and take into account the fact that there are other litigants who were entitled to have their disputes resolved and their day in court…

(i) The fact that the limitation period had not yet expired should no longer militate against an order striking out an action. Where there had been abuse, any fresh proceedings by a plaintiff might be met by an application to stay or strike out those proceedings on the ground of abuse and the burden would be on the plaintiff to justify why he should be permitted to continue with the fresh action …

(j) It remained that the position under the CJR that any delay caused by the plaintiff’s legal advisers would not be relevant to the exercise of the court’s discretion to strike out...

Discretion

(6) The power to strike out for delay was a discretionary power and derived from the court’s inherent jurisdiction. In exercising its discretion under its inherent jurisdiction, a court must (in applying the principles set out at 5 (a) – (j) ultimately ask itself the question whether or not in the circumstances it was just to strike out. A mechanic approach was to be eschewed.”

Defendants’ case

20.  Counsel for the defendants (for easy reference, “defendants” will hereinafter mean the 2^nd named 1^st defendants, the 2^nd defendants, the 4^th defendants and the 5^th defendants only, unless otherwise indicated), Mr. Chan[5], Mr. Sham[6] and Mr. Fong[7], advanced their striking out applications on the similar grounds.  There was abuse of court process by the plaintiffs.  It included inordinate and inexcusable delay on the part of the plaintiffs.  It gave rise to a substantial risk that it was not possible for a fair trial and had caused serious prejudice to his client.  The plaintiffs were guilty of their contumelious conduct to fail the court orders and lack of intention to bring the proceedings to a conclusion.  Throughout the years, the plaintiffs changed their case from time to time.  No further amendment on the Statement of Claim should be allowed.

Plaintiffs’ case

21.  Mr. Chong denied any abuse by the plaintiffs.  They only admitted lapse of time but denied delay in prosecution.  There was negotiation between the plaintiffs and the 5^th defendant over terms of settlement (especially between 2012 and 2015).  No prejudice would be caused to the defendants. Their mere allegation of vague memory and/or loss of witness should be rejected.  The wordings of the order of Master Yu were “problematic”. One should not forget the counterclaim of both the 1^st and 4^th defendants.  The plaintiffs, by their latest application to amend their pleadings, only sought to reformulate the claims in a more readable form.  No new facts and cause of action were added.

Inordinate and inexcusable delay?

22.  It is convenient to start with the question as to whether there is any inordinate and inexcusable delay.  Notwithstanding the denial of it by the plaintiffs, I take the view that the answer is quite obvious.  The period of 20 years starts to speak for itself.  Further, to put the case of the plaintiffs to their highest, i.e. there was police investigation in about 2002 and negotiation with the 5^th defendant (why not other defendants) for some time, the delay on the part of the plaintiffs to prosecute their claims is obviously inordinate and inexcusable, especially when one bears in mind the aforesaid warning or order given by Master Yu. 

Prejudice - Substantial risk for a fair trial impossible?

23.  Of course, mere delay per se does not justify an order of striking out.  What about prejudice done to the defendants? Although, as a matter of principle, it is not a must but only extremely relevant consideration in majority cases.

24.  Mr. Chan said that the 2^nd named 1^st defendants would not be able to have a good memory of events dating back to 1997. Mr. Sham echoed it for the 2^nd and 4^th defendants, especially when the latter was of over 76 years of age and residing primarily in China since 2000.  He further added the case of the plaintiffs had been evolving throughout the years.  The claims were mainly concerned with “oral representations”.  Even with the draft new pleadings before the court, particulars of the representations were not pleaded or pleaded clearly.

25.  Mr. Fong agreed that all parties, even including the plaintiffs, were relying on their own memories as the oral conversations between 1993 and 1997 would be important.  It was the plaintiffs’ case that numerous meetings were held during the period when false representations were made.  As there were no minutes and contemporaneous record, memories of witness were of importance.  Regarding the 5^th defendant (as well as the 3^rd and 4^th defendants), he was brought into the proceedings late. He denied the allegations.  He could not retrieve bank record to refresh his memory.

26.  Mr. Chong disagreed.  The alleged loss of memory could not be a substantial ground having regard to availability of some 12 documents[8] herein, including the Chinese Agreement.  The memory of the 4^th defendant could be refreshed by his statement given during investigation in 1997.  He did not name any witness should there be no delay.  Bald assertion of prejudice should not be accepted.  Competent witness was available, including one Mr. Ho who was the key person in the project.  In any event, should there be any prejudice (which was denied), it only went against the plaintiffs because burden lay on them to prove the oral representations.

27.  Upon consideration, I prefer the submissions from the 3 counsel for the defendants but not those for the plaintiffs.

28.  Oral representations go to the heart of the plaintiffs’ claims herein. They happened over 20 years ago.  There was no written record of such representations.  When one considers the 11 documents pointed out by Mr. Chong, they really offer no particular assistance to the plaintiffs’ claim.  They did not show any hints as to what were said by whom and when. Bearing in mind the comments made by Chung J. in his Judgment dated 1 November 1999 herein, the Chinese Contract might have to be construed in light of the surrounding circumstances, i.e. what conservations happened or representations (if any) made by parties at the material times.

29.  With the evidence before me, on balance, I agree to accept that memory of the defendants (including their potential witness, if available) regarding the claims by the plaintiffs had faded out and there is substantial risk that a fair trial is not possible in the present case.

Contumelious conduct/ wholesale disregard of court orders?

30.  Contumelious conduct and wholesale disregard of court orders are serious allegations and should not be easily found.

31.  The 3 counsel for the defendants relied on the undertaking^[9] given by the plaintiffs by way of affirmation when they opposed for the striking out applications issued in 2007, the said order and/or warning given by Master Yu on 14 September 2007, the plaintiffs’ failure to file/serve/exchange witness statements (and expert reports)^[10] and to attend the checklist hearing on 12 March 2008.

32.  Mr. Chong disagreed. He said that the wordings of the order of Master Yu were problematic.  It was made before the case of Wing Fai.  It was merely an advisory statement (or an observation) which lacked the status as an order capable of being enforced.  It was not made in the form of an unless order.

33.  I disagree with Mr. Chong.  His argument on the order made by Master Yu is misplaced.  The substance and importance of the said order of Master Yu, in my view, serves as a final warning to the plaintiffs, i.e. their claims could possibly be struck out if they continued to fail to comply with the orders made by the court and to prosecute their case diligently, but of course, application is to be initiated by the defendants.

34.  As to the other complaints for want of prosecution, including preparation of witness statements and expert reports, I have not heard any or any sufficient explanations from the plaintiffs.

35.  To conclude, on balance, I do find contumelious conduct and wholesale disregard of court orders on the part of the plaintiffs.

No intention to bring the proceedings to conclusion?

36.  The plaintiffs paid the deposit of 15 million 20 years ago. They commenced the present proceedings and sought to recover them as well as interest damages and costs. Do they really want a trial of their claims by the court?

37.  Upon review of the court proceedings and evidence before me, on balance, I agree that the plaintiffs do want their money and so forth back but, for some reasons best known to them, do not really want the case to be tried, i.e. they have no intention to bring the action to a conclusion.

(a)  Judgement (albeit a default one) was obtained by the plaintiffs against the 5^th defendant in 2000. However, the former took no step to enforce it for 6 years. It was later set aside by consent in 2006. 

(b)Notwithstanding the 1^st striking out application in 2006, the undertaking as contained in the plaintiffs’ affidavit evidence, the order/warning by Master Yu, the best case for the plaintiffs is that they tried negotiation of settlement for some time with the 5^th defendant. However, they did not comply with other directions of the court to proceed with the case.

(c)  Irrespective of whether the plaintiffs are reformulating or streamlining their claim or changing their cases by their amendment application, they sought to have the whole proceedings “re-started” from square one. 

Abuse of court process by the plaintiffs?

38.  With the above, on balance, I do find the plaintiffs guilty of abuse of court process.

Striking as last resort/Exercise of discretion – just to strike out?   

39.  Last but not least, it remains for the court to see if discretion should be exercised by striking out the claims as against those defendants appearing before me.

40.  In my view, it boils down to a balancing exercise with regard to the circumstances of the present case.  The factors against the making of an order for striking out include the followings:

(a)  The present proceedings are a straddle case, i.e. it was begun before our CJR which took effect from 2 April 2009 and continued thereafter.

(b)After CJR, all parties shoulder equally to obligation to assist the court to further the underlying objectives as per O.1A r.1 (a) to (f) RHC, including ensuring the case is dealt with as expeditiously as is reasonably practicable.

(c)  The defendants were equally guilty of sitting on the case after CJR and failed to prosecute their defence and counterclaim (for 2^nd named 1^st defendants and 4^th defendants) as well as bring up the striking out application against the plaintiffs earlier as directed by the order of Master Yu.

(d)The making of a striking out order as prayed for the defendants now before the court does not bring a complete ending to the present proceedings. The claims against the 1^st named 1^st plaintiffs and the 3^rd defendants remain alive. The counterclaim of the 1^st defendants and 4^th defendants has yet to be disposed of.

41.  Nonetheless, to balance the factors on both sides, including the overwhelming abuse of court process on the part of the plaintiffs herein, I take the view that it is still just to strike out the plaintiffs’ claim against the defendants before me.

Amendment application   

42.  I now turn to the plaintiffs’ amendment summons.

43.  Since the commencement of the proceedings, the plaintiffs have been legally represented.  They also had the benefit of counsel drafting and/or settling their earlier statement of claims.  They sought to introduce their Re-Re-Re-Re Amended Statement of Claim.  They further sought to abandon all earlier amended pleadings but started it afresh.

44.  Mr. Chong explained in his skeleton that: 

“ 45. Ps reiterate their submission for amendment of their pleadings which consists only of reformulation of the same cause of action and streamlining the assertions of fact by deleting some immaterial facts not really necessary to support the causes of action.

46. …

56. As is apparent from the contents of the proposed amendment, Ps ’application is to ensure that their existing causes of action would be reformulated in a more readable form so that the oncoming trial would be streamlined.

57. Apart from re‑formation of the existing causes of action, :‑

(a) no new causes of action has been added; and

(b) no new facts would be relied upon.

58. The necessity of such reformation is due to the complexity of the factual background and, in their proposed amendment, some immaterial facts were deleted.

59. …

60. In certain cases involving amendment to complex factual background to achieve clarity it may be desirable to delete the entire existing pleading and to substitute a new one to assist the trial judge.”

45.  Counsel for the defendants disagreed.  Mr. Chan said that there were substantial changes.

46.  Mr. Sham also said that the proposed amendments amounted to totally new pleadings.  He prepared a table to illustrate it.  He also said that the proposed amendments lacked particulars of the alleged oral representations.  He stated in his skeleton for the hearing on 7 November 2017 that:

“17. … It would be the Plaintiffs’ duty to give particulars of the alleged oral representation mentioned in paragraphs 13 and 19 to 32 of the Plaintiffs’ draft Re-Re-Re-Re-Amended Statement of Claim including the time, dates and other persons who would be in the scene when the alleged oral representations were made. Otherwise the Defendants would not be in a position to investigate and prepare properly their defence. And one of the prime purposes of pleadings was to set out the case with such details that a defendant would not be taken by surprise. When the necessary particular of a claim is not pleaded, the cause of action has not been properly set out in the statement of claim so the plaintiff would fail to discharge his/her duties to plead the cause of action and the statement of claim is liable to be struck out…

18. Despite the fact that paragraph 31 of the Plaintiffs’ draft Re-Re-Re-Re-Amended Statement of Claim is alleging negligent misrepresentation, the Plaintiffsfailed to plead the alleged duty owned by each of the Defendants to the Plaintiffs and whether the alleged duty was contractual or common law duty and the relationship between each of the Defendants and the Plaintiffs. In the absence of the duty of care in the pleadings, the Plaintiffs had not set out the claim on negligent misrepresentation and that part of the claim is liable to be struck out.”   

47.  Mr. Fong added that not only no immaterial facts had been deleted, further new facts and allegations causes of action were added.  He also spent time preparing a table to help the court to understand the differences between the 2 sets of pleadings. In his skeleton reply for the hearing on 7 November 2017, he said:

“42. Most importantly, in §§23 to 25 of the Re-Re-Re-Re-ASOC…, Ps fictitiously invented an Agreement of 15.1.1997 saying it was partly orally and partly in writing. Whereas in their initial pleaded case, there was only one agreement pleaded in which Ps are relying on, named the written Chinese Contract dated 15.1.1997 in which the 1^st and 2^nd named D1 were the contracting parties with Ps…

43. In the proposed amendment, this Chinese Contract is being relegated and became a so-call Chinese Memorandum (§24(b)). Instead, Ps invented the so-called the oral part of the Agreement in which D3-D5 became the contracting parties as principals (§24(a)).

44. Not only this drastic change of capacity, Ps pleaded further in §25(c) and (g) that D3-D5 had given certain warranties under this Agreement. No details were given on how these warranties were given, presumably again given orally. Now the present claim against D5 includes a breach of the Agreement (oral) (§34).

45. Ps simply cannot at this stage after over 20 years invented a cause of action based on oral agreement and oral warranty. Ps offers no explanation on why these facts or allegations that must have happened before the Chinese Contract was executed on 15^th January 1997 not pleaded earlier and only now seeks to put into the pleading after 20 years. They must have been within the knowledge of Ps and all along they were legally represented.”   

48.  Upon thought, I agree with the careful analysis and submissions from the 3 counsel for the defendants, rather than the blanket assurance put by those for the plaintiffs.  By the new proposed amendments, there are material changes in the case of the plaintiffs.  They therefore owe the defendants proper explanation as well as particulars under our rules.  I further reject the argument that the particulars go to evidence of the plaintiffs’ case when the witness statements for the plaintiffs should have been filed served and/or exchanged much earlier herein in accordance with orders having made by the court long time ago.    

49.  Alternatively, if I were wrong in the above, i.e. the new proposed amendments do not change the plaintiffs’ case in substance but only sought to improve its presentation, it is also to be refused in light of the history of the present proceedings, because such order is not necessary either for disposing fairly of the cause or matter or for saving costs under Order 20 rule 8 (1A) of the Rules of High Court (Cap.4A).

Costs order nisi

50.  Costs usually follow event and there appears to be no reason to depart from it in the present summonses before me.  As to the costs reserved by Master M. Wong, I take it that the adjournment was caused by the late issuance of the striking out application by the 5^th defendant.  He should therefore be responsible for the wasted costs of the plaintiffs.  Regarding other defendants who were also present on 17 October 2017, there should be no order as to costs as they also took out their striking out applications at a later date.

Conclusion

51.  To conclude, I will make the following order.

The summons filed by the 2^nd named 1^st defendants on 31 October 2016

(a)  The Re-Re-Re-Amended Statement of Claim herein against the 2^nd named 1^st defendants be struck out for abuse of court process.

(b)The action herein against the 2^nd named 1^st defendants be dismissed.

(c)  There is an order nisi that the plaintiffs do pay the 2^nd named 1^st defendants cost of the application, including costs reserved and certificate of counsel for hearing on 8 February 2018, to be taxed, if not agreed.

The summons filed by the 2^nd defendant on 31 October 2016

(a)  The Re-Re-Re-Amended Statement of Claim herein against the 2^nd defendant be struck out for abuse of court process.

(b)The action herein against the 2^nd defendant be dismissed.

(c)  There is an order nisi that the plaintiffs do pay the 2^nd defendant cost of the application, including costs reserved and certificate of counsel for hearing on 8 February 2018, to be taxed, if not agreed.

The summons filed by the 4^th defendant on 31 October 2016

(a)  The Re-Re-Re-Amended Statement of Claim herein against the 4^th defendant be struck out for abuse of court process.

(b)The action herein against the 4^th defendant be dismissed.

(c)  There is an order nisi that the plaintiffs do pay the 4^th defendant cost of the application, including costs reserved and certificate of counsel for hearing on 8 February 2018, to be taxed, if not agreed.

The summons filed by the 5^th defendant on 12 October 2016

(a)  The Re-Re-Re-Amended Statement of Claim herein against the 5^th defendant be struck out for abuse of court process.

(b)The action herein against the 5^th defendant be dismissed.

(c)  There is an order nisi that:

(i)   the plaintiffs do pay the 5^th defendant cost of the application, including costs reserved (unless otherwise ordered) and certificate of counsel for hearing on 7^th November 2017, to be taxed, if not agreed, and

(ii)   the 5^th defendant do pay the plaintiffs costs of the hearing on 17 October 2016, including costs wasted and certificate of one counsel for the day, to be taxed, if not agreed.

The summons filed by the plaintiffs on 19 November 2015

(a)  The application is dismissed.

(b)For the purpose of the proceeding with of the remaining claim by the plaintiffs against the 1^st named 1^st defendants and the 3^rd defendant as well as the counterclaim by the 1^st defendants and the 4^th defendants against the plaintiffs,

(i)   they do attend before the master for a case management conference (CMC) on 5 September 2018 at 11:30 a.m. with half an hour reserved, and  

(ii)   leave is hereby granted to the plaintiffs to serve a sealed copy of this order upon the 1^st named 1^st defendants and the 3^rd defendant out of jurisdiction at the addresses provided in their Notices to Act in Person both filed on 18 April 2016 or elsewhere in Canada.   

(c)  There is an order nisi that:

(i)   the plaintiffs do pay the 2^nd named 1^st defendants, the 2^nd defendant, the 4^th defendant and the 5^th defendant costs of the application, including costs reserved (unless otherwise ordered) and certificate of counsel for hearing on 7 November 2017, to be taxed, if not agreed, and  

(ii)   the 5^th defendant do pay the plaintiffs costs of the hearing on 17 October 2016, including costs wasted and certificate of one counsel for the day, to be taxed, if not agreed.