LI YEE TAI v. YIP YAM CHUNG

DCCJ2475/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2475 OF 2007

----------------------

----------------------

------------------------

D E C I S I O N

----------------------

1.  At today’s hearing the defendant appeals against Master Poon’s decision to dismiss the defendant’s application to strike out the plaintiff’s statement of claim on the ground it discloses no reasonable cause of action on 12 September 2008.

2.  The defendant, on 6 October 2008, issued a fresh summons applying to strike out the plaintiff’s statement of claim under Order 18 rule 19(1)(b), (c) and (d) of the Rules of District Court.  The defendant claims that the plaintiff’s statement of claim is scandalous, frivolous or vexatious, may prejudice, embarrass or delay the fair trial of the action, or otherwise is an abuse of process of court, and the defendant asks under summons for leave to file a supporting affidavit with evidence for the fresh summons.

3.  At today’s hearing, the plaintiff is absent and the affidavit of service from the defendant’s solicitor indicated the plaintiff was duly and properly served the 6 October 2008 summons with the supporting affidavit and exhibits enclosed.

4.  I was further informed at this morning’s hearing that the defendant’s legal representatives had telephoned the plaintiff this morning and was informed that she is now in Beijing.  This means there is no way that the plaintiff can come to court this morning for the hearing.  The hearing is therefore conducted in the plaintiff’s absence.

5.  In spite of having received this service of the fresh summons, the plaintiff failed to file an affidavit of opposition to the defendant’s fresh summons to strike out her statement of claim or in any way indicate to the court that she opposes the defendant’s fresh summons to strike out. 

6.  Although technically the defendant cannot file fresh evidence at an appeal without a leave of court, his supporting affidavit, which is named the second affirmation of Yip Yam-chung, dated 6 October, was filed with the inter partes summons and intended as supporting affidavit to the fresh summons to strike out.  Both were filed on the same day, 6 October 2008.

7.  Had the plaintiff intended to oppose the fresh summons to strike out, one would have expected her to have filed an opposition by means of an affidavit in reply to the second affirmation Yip Yam-chung.

8.  Under the circumstances and in view of the fresh evidence produced under the fresh application to strike out from the defendant, the defendant has shown that he had complied with the sale and purchase agreement of the motor vehicle and, indeed, had subsequently executed documents of transfer for the new vehicle purchased with the Hong Kong Transport Department.  Taking into account the plaintiff’s own admission in the statement of claim that she had been able to drive the new motor vehicle in and out of China since its purchase, I found the defendant has prima facie shown he had completed his part of the bargain under the contract.

9.  The plaintiff’s statement of claim referred to a subsequent agreement without specifying its nature, the terms, such as timing and consideration, to this subsequent agreement; and as the plaintiff failed to file any evidence by means of an affidavit of opposition in the fresh summons or appear in court to oppose the fresh summons to strike out under new grounds, the court has only the evidence from the defendant under the fresh summons.  For this reason, I will allow the defendant’s fresh application to strike out the plaintiff’s claim.

10.  It must be noted that without the fresh evidence filed under the new summons to strike out I do not think the defendant can in any way succeed in the original summons to strike out.  I find the decision by Master Poon on 12 September 2008 under the first summons to strike out was the correct one and therefore I dismiss the defendant’s appeal against the Master’s decision and order of 12 September 2008 but I will allow the application to strike out under the fresh summons of 6 October 2008. 

11.  I would also allow costs to the defendant only on the fresh summons to strike out, to be taxed if not agreed.  The costs, so far as the appeal is concerned, are not allowed.