LAM WOR LAM v. ZHOU LI QIONG AND ANOTHER

HCA 1154/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1154 OF 2010

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DECISION

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The application – Order 32 rule 11A

1. This is an application to be disposed of on paper under Order 32 rule 11A:

11A. Interlocutory applications

(O. 32, r. 11A)

(1)   A master may-

(a)  determine an interlocutory application without an oral hearing; or

(b)

(2)  The master may fix a date on which he may-

(a)  in the case of paragraph (1)(a), hand down his determination of the application; and

(b)

(3)  The master may give such directions as he thinks necessary or desirable for the purpose of determining the application, including directions for-

(a)  the setting of a timetable for the steps to be taken between the date of the giving of those directions and the date of the determination of the application;

(b)  the filing of evidence and arguments;

(c)  the filing of a statement of costs in respect of the application; and

(d)the filing of a statement of grounds in opposition to the statement of costs referred to in sub-paragraph (c).

2. At the Case Management Summons hearing on 22 October 2012, the parties brought my attention to a summons taken out by the 1st defendant on 5 October 2012 for further and better particulars from the plaintiff and a 3-minute call-over hearing had been fixed on 5 November 2012.  Having considered the parties’ submissions at the hearing, it appeared that the matter was relatively simple as only one particular was requested and the plaintiff’s solicitor had also indicated that the particular was known to the 1st defendant and would, in any event, be disclosed in the witness statements.  However, she insisted that, as a matter of principle, she opposed the application.

3. Under those circumstances, in order to save costs and time for active case management, I consider that it would be convenient to dispose of the matter on paper and I gave the following directions:

a.  The summons be adjourned to 10:00 a.m. before myself for a 2-hour hearing (as estimated by the parties) on 23 November 2012;

b.  The 1st defendant should lodge and serve the written submission together with the schedule of costs latest by 5:00 p.m. on 31 October 2012;

c.   The plaintiff should lodge and serve the written submission together with the schedule of costs latest by 5:00 p.m. by 2 November 2012;

d.  The Registrar might dispose of the application on paper and the parties would be informed so as to dispense with the hearing on 23 November 2012;

e.   Costs of the summons be reserved.

4. The parties have duly complied with the directions for lodging of the written submission.  Having considered their submissions, I consider that I am able to dispose of the application without a hearing. What follows are my reasons for my decision.

The parties’ pleaded case

5. The plaintiff claimed against the 1st defendant and the 2nd defendant respectively for, as to the 1st defendant, specific performance for the sale the property, a flat on 1/F, No. 127D Ma Tau Wai Road (the property) as the registered owner and/or damages; and as to the 2nd defendant, for damages.[1]

6. The brief facts of the claim are that on 2 May 2010, the 2nd defendant and the plaintiff had signed a provisional agreement for sale and purchase of the property (the provisional agreement) for the price of $720,000.00 through a property agency. Pursuant to the provisional agreement, the plaintiff paid $30,000.00 as the initial deposit, through the property agent, to the solicitors acting for the 2nd defendant.  However, on 11 May 2010, the solicitors for 2nd defendant returned the cheque for $30,000.00 to the plaintiff’s solicitors, saying that they had no further instructions to act for the vendor (1st defendant).  On 14 May 2010, the plaintiff’s solicitors sent the initial deposit and further deposit of $42,000.00 by cheque payable to the 1st defendant at the property’s address.  On 22 June 2010, the 1st defendant’s solicitors wrote to the plaintiff’s solicitors saying that the 1st defendant had never entered into the provisional agreement.  The plaintiff’s solicitors, however, held the 1st defendant to the provisional agreement and insisted that 1st defendant must sell the property to the plaintiff as agreed.  On the completion date, the completion did not take place.  The 1st defendant had also not sent the titled deeds to the plaintiff’s solicitors.  The plaintiff took out this action against the 1st defendant.

7. The 1st defendant’s defence is simply this.  She is a resident in the mainland and the property has been leased for rent.  The 2^nd defendant was only asked to receive the rents, which she would account to the 1st defendant in the mainland from time to time.  The 1st defendant has never authorized the 2nd defendant to sell her property and she has not executed any power of attorney for the 2nd defendant to deal with her property.  She had no knowledge of the deal between the 2nd defendant and the plaintiff and she had never instructed solicitors to act for her for the sale of the property.  She was informed by her friend that an agreement had been registered against her property.  She had made complaints to the Estate Agents Authority, the Law Society and the Police about this incident.  She was unable to locate the 2nd defendant.

8. The above brief facts are derived from the pleadings of the plaintiff and the 1st defendant.  On the face of the pleadings, it seems clear that the 1st defendant is pleading non est factum and that the 2nd defendant had no authority to sell her property. In paragraph 1 of the statement of claim, the plaintiff pleaded “The1st defendant is, and was at all material times, the registered owner of … the property.  The 2nd defendant is, and was all material times, the lawful attorney of the 1st defendant in dealing with the property.”

Discussion

9. It is quite clear that at the trial, the main issue will be whether the 2nd defendant was the lawful agent for the 1st defendant for the sale of the property when she signed the provisional agreement. The burden is on the plaintiff to prove that 2nd defendant was the 1st defendant’s agent at the material times.  The 1st defendant’s solicitors, by a letter dated18 September 2012, requested the plaintiff’s solicitors to give “all material facts and give full particulars of all matters relied on in support of the allegation and that the 2nd defendant is, and was at all material times, the lawful attorney of the 1st defendant in dealing with the property.”

10. The plaintiff refused to give the particulars on the reasons as set out in §4 of the written submissions, summarized below:

a.   The plaintiff’s case is simple and straightforward and the 1st defendant should know the plaintiff’s case;

b.   The property agent, Mr. Chu had given a statement to the police.  The 1st defendant should have known about the contents;

c.   The statement given by Mr. Chu is evidence, as such, it is not particular that the 1st defendant is entitled to;

d.   So long as the 2nd defendant had signed the provisional agreement, “it is a prima facie case that 2nd defendant signed as agent and had the implied authority from D1 to do so. The burden of proof will be vested on D1 to prove D2 was not her lawful attorney or agent at the time of signing the provisional agreement…”

11. The parties have no dispute on the legal principles on particulars, citing the same references from the Hong Kong Civil Procedure 2012 that the court has the power to order particulars, but the court must exercise such power only if it is necessary either for disposing fairly of the cause or matter or for saving costs; that the parties should not waste costs and time over interlocutory applications and that they should not treat civil litigation as games.  It is enlightening to see that on those common legal principles, the parties still have to litigate over this application.

12. In my view, the dispute between the parties arises out of the plaintiff’s misconception of the burden of proof for this matter.

13. The reasons under paragraph 10(d) above illustrate my view.  The plaintiff’s proposed presumption is not supported by any legal authority, and if accepted, will deny the 1st defendant’s right to defend her case in this action, which is fundamentally contrary to natural justice.

14. In the circumstances, it is clear that the 1st defendant is entitled to make the request and the plaintiff, having pleaded her case to raise the fact, must give further and better particulars as requested.  This will, no doubt, assist the 1st defendant to prepare her case properly and the court to adjudicate the matter, saving time and costs for the trial.

Conclusion and order

15. I shall now make an order that the plaintiff shall, within 14 days from the date hereof, give the particulars as requested by the 1st defendant.  As the 1st defendant succeeds in this application, the 1st defendant should have the costs.

16. I have considered the schedule of costs submitted by the 1st defendant, which amounts to $30,805, which is not excessive as compared with the plaintiff’s costs of $37,386.  However, as seen from the above, the issue is a very narrow one and it should not have taken a solicitor more than 3 hours for the preparation of the written submissions.  The solicitor is charging $3,500.00 per hour.  Taking into account of the costs reserved, the disbursements and the time for explanations to client, on a broad brush approach, I consider that the reasonable costs for the 1st defendant should be $15,000.00, which I shall so order the plaintiff to pay to the 1st defendant within 14 days from the date hereof unless the parties by 26 November 2012 apply to vary this costs order pursuant to Order 42 rule 5B(6) of the RHC.

17. The hearing on 23 November 2012 is vacated.