PAI CHIN MING v. LUO XIAO AND OTHERS

                 HCA 2693/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.2693 OF 2006

________________________

J U D G M E N T

1. This is an appeal from the order of Master Mary Yuen given on 13 May 2008 ordering the 1^st and 2^nd defendants to serve an answer to paragraphs 1, 2(a), 3 and 5 of the plaintiff’s amended request for further and better particulars of the defence of the 1^st and 2^nd defendants dated 8 March 2008.

2. The order of the master dated 13 May 2008 sets out in the schedule the four matters in respect of which an order was made for further and better particulars to be supplied by the 1^st and 2^nd defendants. 

3. The first matter in the schedule to the order is a request under paragraph 11 of the defence.  Ms Yen, for the plaintiff, withdraws this request, so I do not think I need to dwell on this any longer. 

4. The second request is under paragraph 12 of the defence.  Ms Yen also withdraws this request.

5. That leaves two further requests. 

6. The third request is under paragraph 15(2) of the defence.  Paragraph 15 of the defence pleads in answer to paragraph 14 of the amended statement of claim.  Paragraph 14 of the amended statement of claim pleads that the sale of the property mentioned in the pleading was conducted and completed at the offices of Messrs Michael Cheuk, Wong & Kee “in or about 26 September 2005”.  It is also pleaded there that both the memorandum for sale and purchase and the assignment of the property were respectively executed by the 3^rd defendant and the 2^nd defendant on the same day at the office of the solicitors.

7. Paragraph 15 of the defence pleads that the assignment by which the property was assigned by the 3^rd defendant to the 2^nd defendant was dated 26 September 2005 and executed by the 2^nd defendant at the office of the said solicitors on or about that date and that the memorandum for sale and purchase is dated 21 September 2006.  Paragraph 14 is denied save for the two matters pleaded in paragraph 15 of the defence. 

8. I am told that there is a typing error in the defence namely, that 21 September 2006 should be 2005.  However, nothing turns on that on the request that has been made.

9. The request consists of two parts :

(a)     “ Please state whether or not the Agreement and the Assignment were executed on the same day at the office of MCWK.”

10. It has been pleaded in paragraph 14 of the amended statement of claim that the memorandum and the assignment were both executed on the same date at the office of the solicitors.  That allegation has been denied in paragraph 15 of the defence.  So the allegation made by the plaintiff that the memorandum and the assignment were executed on the same day has been denied.  I do not think any further particulars of the denial ought to be ordered. 

11. The second part of the request is :

 (b)   “Please state the names of persons present when the agreement and assignment were executed by the 2^nd Defendant and the 3^rd Defendant.” 

12. This is a request for the evidence to be adduced at trial by seeking the names of witnesses.  I do not think it is permissible to make an order to give information as to the witnesses to be called by the defendants.  In my view, this is not a proper request and the order should not have been made. 

13. Turning to the fourth request, this is under paragraph 25 of the defence.  The point made by Ms Yen is that by paragraph 24 of the defence the defendants admit paragraph 23 of the statement of claim.  

14. Paragraph 23 of the amended statement of claim pleads that the 1^st defendant filed a form D2A and reported to the Companies Registry as the appointed director of the 3^rd defendant as from 30 June 2006. 

15. Paragraph 24 of the amended statement of claim pleads that by reason of his office “as a de facto and/or de jure director” the 1^st defendant owed to the 3^rd defendant the duties pleaded therein. 

16. Paragraph 25 of the defence pleads that it is denied that the 1^st defendant has ever been a de facto or de jure director of the 3^rd defendant.  So Ms Yen submits that there is an inconsistency in the 1^st defendant’s case as he has admitted that he has filed a form D2A and reported to the Companies Registry as an appointed director as from 30 June 2006 of the 3^rd defendant and by paragraph 25 of the defence he denies that he has ever been a de facto or de jure director of the 3^rd defendant.  It is submitted that the request is a proper one namely,

“Please state the grounds or basis for such denial.”

17. As I pointed out to Ms Yen in argument, the fact that there is an inconsistency in the pleading means that the plaintiff has material for cross-examination of the 1^st defendant at trial. 

18. The pleading at paragraph 25 is a specific denial that the 1^st defendant has ever been a de facto or de jure director of the 3^rd defendant.  That is an issue at trial. 

19. I do not think it is proper to order particulars of a denial.  As I have said, if there is an inconsistency in the 1^st defendant’s case, that is a matter for cross-examination at trial. 

20. The fourth request under the schedule to the order is also, in my view, not a proper request. 

21. In the circumstances, I will allow the appeal and set aside the master’s order.