THE INCORPORATED OWNERS OF THE SEA RANCH v. JOYFUL INTEREST LTD

DCMP1845, 1846 & 1847/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS. 1845 & 1846 OF 2010

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BETWEEN

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REASONS FOR DECISION

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1.  This is the plaintiff’s appeal against the decision of Master B Mak dated 29 July 2011 refusing the plaintiff’s application for leave to file and serve the second affirmation of Ng Chi-ping.

2.  By the originating summons, the plaintiff’s action against the defendant is for payment of monies in the nature of management fees allegedly due to the plaintiff.  The plaintiff also asks the court for an order for sale of the defendant’s properties.

3.  In support of the plaintiff’s action, the plaintiff filed an affirmation by the chairman of the management committee of the plaintiff.  The defendant filed and served an affirmation opposing the application stating, inter alias, that the plaintiff’s affirmation contained no breakdown and no supporting documents, and it put the plaintiff to strict proof of its claim. 

4.  On 21 September 2010 when the parties appeared before Master B Mak, the Master made an order granting leave to the plaintiff to file and serve an affidavit in reply to the defendant’s affirmation on or before 4 October 2010.  He also ordered that no further affidavit shall be filed by any party without leave of the court.  The plaintiff filed and served one affirmation in reply to the defendant’s affirmation on 4 October 2010.  Then the plaintiff took out an application to seek court’s leave to file and serve an affirmation on 19 July 2011.  Ten days later, on 29 July 2011, the application was refused by Master B Mak.

5.  The plaintiff’s affirmation intended by the plaintiff to file and serve to the other side contained materials relevant to the disposal of this action, but the plaintiff’s application for the court’s leave to file this affirmation was made 10 months late.  Why the plaintiff took a period of 10 months to retrieve the information and materials in its affirmation, namely the second affirmation of Ng Chi-ping?  There is no explanation to explain such lateness. 

6.  Being late is not an automatic bar not to grant leave.  It is not the only condition in court’s consideration whether to grant leave or not.  It is merely one of the conditions to be considered.

7.  In my view, it is not a very long delay.  There is no allegation of prejudice suffered by the defendant due to this long period of lateness if court grants leave.  That means to say, such a period of delay will not cause any unfairness to the defendant in the preparation of its case or opposition.  This period of lateness will not cause any difficulty or problem in the resolution of the action.

8.  It is only a prolonged period of time causing prejudice to one of the parties or causing problems or difficulties in the trial resulting in unfairness, then this court would regard it as a very serious matter.  But in the absence of these said matters, it is difficult for the court not to grant leave.

9.  The defendant also argues that there is substantial dispute of facts as to whether the plaintiff was entitled to charge the defendant for the sums allegedly due to the plaintiff.  The defendant would require the plaintiff to make full discovery and then defendant will have to file further affidavit.  So it would not be cost-effective and expeditious for the continuation and just resolution in the resolution of proceedings.  It would be more cost-effective and expeditious if the case had begun by writ.

10.  It is a mere general statement. The defendant has not substantiated this argument by showing actual figures or proof to support this allegation.  If the parties feel it necessary, they can always ask for court’s leave to file further affirmation to clarify matters.

11.  There is no waste of time in this case and there is no waste of costs.  If the court grants leave, there is no prejudice done to the defendant.  For these reasons, I cannot see why I should not grant leave to file the affirmation for the plaintiff so that relevant materials will be disclosed as required by the defendant for the just disposal of this action.  I therefore allow this appeal and set aside the decision or order made by Master B Mak on 29 July 2011.

(Discussion re costs)

12.  Regarding proceedings up to and including the 29th, the plaintiff do pay the costs on both occasions, to be taxed, if not agreed.