LEVERSING LTD v. KWOK MAN YI

HCA 1135/2024

[2026] HKCFI 2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1135 OF 2024

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BETWEEN

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DECISION

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1.  This is Kwok Man Yi (郭敏儀) (the “Defendant”)’s appeal against the order of Master SP Yip dated 27 November 2025 dismissing her application for an extension of time (“EOT”) to take out an amendment summons. It is a procedural appeal as it does not concern the substantive merits of the underlying dispute with LeverSing Limited (the “Plaintiff”) who adopts a neutral stance[1] and whose attendance is excused.

2.  The Defendant seeks:

(i) leave to appeal out of time against the Dismissal;

(ii) an order allowing the appeal; and

(iii) restoration and grant of her Summons dated 15 December 2025 seeking leave to amend her Amended Defence and Counterclaim (“Amendment Summons”).

Procedural background

3.  The Defendant was the former Managing Director of the Plaintiff. The underlying action by the Plaintiff concerns alleged breaches of restrictive covenants, confidentiality obligations, and the duty of fidelity by the Defendant who denies liability and counter claims for unpaid profit sharing.

4.  At the CMC held on 21 October 2025, Master Ho directed the Defendant to take out any amendment application within 28 days (i.e. by 18 November 2025). The matter was adjourned to a 2^nd CMC scheduled for 13 January 2026.

5.  The following events then took place:

(i) 18 November 2025: The Defendant issued an EOT Summons for a 21-day extension for finalising her draft Re-Amended Defence and Counterclaim (“RAD&CC”).

(ii) 27 November 2025: Master SP Yip dismissed the EOT Summons (the “Yip Order”) on the basis that insufficient grounds had been shown and that an extension could prejudice the conduct of the 2^nd CMC. The Master did not make any peremptory order on the Defendant or debar her from applying to amend.

(iii) 3-5 December 2025: The Defendant sought the Plaintiff’s consent to proceed with the amendments without success.

(iv) 15 December 2025: The Defendant issued the Amendment Summons annexing the draft RAD&CC.

(v) 22 December 2025: Master Hui adjourned the Amendment Summons sine die with liberty to restore, opining that the Defendant must first appeal the Yip Order.

(vi) 22 December 2025: The Defendant filed the Notice of Appeal (“NOA”) against the Yip Order.

Applicable legal principles

6.  RHC O.3 r.5 confers a wide discretion, inter alia, to extend time upon the court. The Rules are “designed to enable justice to be done between the parties”: Astro Nusantara International BV v PT Ayunda Prima Mitra (2018) 21 HKCFAR 118 per Ribeiro PJ at §53. At §55 the CFA approved the approach formulated by the Court of Appeal in The Decurion [2012] 1 HKLRD 1063, §11:

“It is clear that the applicable principle in deciding whether time should be extended is to look at all relevant matters and consider the overall justice of the case. A rigid mechanistic approach is not appropriate …”

7.  The Court of Appeal set out the relevant factors in Lee Chick Choi v Best Spirits Co Ltd, HCMP 371/2015, 21 May 2015 (at §19): (i) the length of the delay; (ii) the reasons for the delay; (iii) the chances of the appeal succeeding if an EOT is granted; and (iv) prejudice to the other party if the application is granted.

8.  As for the reasons for delay, “the fact that the omission to appeal in due time was due to a mistake on the part of the legal adviser, may be a sufficient cause to justify the court in exercising its discretion”: Chiu Sin-chung v Yu Yan-yan, Angela and Another [1993] 1 HKLR 225 at 228 ll.14-16 where Keith J cited Gatti v Shoosmith [1939] 3 All ER 916 at 919G.

9.  O.20 r.5 allows amendments “at any stage of the proceedings”. The applicable principles are set out by Cheng J in Circuitronix, LLC v Kingboard Chemical Holdings Limited and Ors [2023] HKCFI 3359 at §§ 18-25. The Defendant’s skeleton (at §16) summarises those principles as follows:

a. Amendments should generally be allowed where necessary to determine the real question in controversy or to correct defects: Ketteman v Hansel Properties Ltd [1987] AC 189.

b. The Court must apply the underlying objectives in O.1A, including securing the just resolution of disputes.

c. Leave is readily granted before trial unless the proposed amendment is bound to fail. The proposed case is taken at its highest.

d. Where prejudice is alleged, the burden lies on the party opposing the amendment to show prejudice that cannot be compensated by costs.

10.  The power to amend remains available even where a party has missed a deadline for amendments unless that party has been debarred by the prior order from so doing: Gao Xin Jian Group (Hong Kong) Holding Co Ltd v Kin Lee Precast Concrete Products Co Ltd [2024] HKCFI 1058 at §73.

Leave to appeal out of time

11.  The deadline for appealing was 11 December 2025. The NOA was filed on 22 December 2025, a delay of 11 days.

12.  The Defendant’s legal representatives were of the view that an appeal was unnecessary because O.20 r.5 permits amendments at any stage absent any order debarring the Defendant from applying afresh. Master Hui directed that the Dismissal must first be appealed. That led to the filing of the NOA the very same day.

13.  I accept the submission that even if the delay was treated as a mistaken procedural view, it is not a bar to relief: see Chiu Sin-chung[2].

14.  As there is no discernible prejudice to the Plaintiff who takes a neutral stance, I have no hesitation in granting leave to appeal out of time.

The appeal against the Yip Order

15.  Mr Kwan Ping Kan and Mr Jason PH Wong, counsel for the Defendant submit that the appeal should be allowed for the following reasons: the CMC direction of 21 October 2025 contained no unless provision and no sanction for non-compliance; the Defendant sought a modest extension on the final day for taking out an EOT summons; no trial date had yet been fixed in circumstances where the Plaintiff maintains a neutral stance.

16.  While it is readily conceivable that the grant of a short extension could derail the 2^nd CMC, if such a course would enable a party to put forward its real case, bearing in mind that the primary objective is the just resolution of disputes in accordance with the substantive rights of the parties, to the EOT Summons outright appears disproportionate. Any prejudice could be addressed by granting a shorter extension period, adjusting the date of the 2^nd CMC and by an appropriate costs order.

17.  Exercising the Court’s discretion afresh, I would grant the extension sought.

18.  It follows that the Amendment Summons be restored for determination on its merits.

Whether the Defendant is precluded from applying to amend

19.  The Defendant submits that even if the Dismissal had been rightly decided, it does not preclude the Defendant from bringing a fresh application to amend under O.20 r.5 since that rule empowers the Court to allow amendments “at any stage of the proceedings”.

20.  Gao Xin Jian is a case where the defendant had missed a 28-day deadline for filing its Re-Amended Defence and Counterclaim and its EOT summons was dismissed. Cheng J held (at §73) that “it always remains open to the Defendant to apply for leave to amend its ADCC”.

21.  Where a party has not been expressly debarred from amending his pleadings, the Court’s jurisdiction under O.20 r.5 is unaffected and remains extant. Whether or not the Court would allow the amendments would depend on the circumstances of the case.

22.  The Defendant submits and I agree that she had the right to issue a fresh summons under O.20 r.5 regardless of the outcome of the EOT Summons. That right is not contingent on the Defendant first successfully appealing the Yip Order.

23.  For those reasons, I do not agree with Master Hui’s view that the Defendant must first appeal the Yip Order before she could proceed with her Amendment Summons.

The Amendment Summons

24.  The amendments the Defendant wish to make go directly to the disputed issues between the parties: the enforceability of the restrictive covenants, the Plaintiff’s authorisation of the Tang Yut transaction, the conduct of Lularoe and K-Brand, and the allegation of solicitation. Those matters are central to the resolution of the dispute between the parties and from the Defendant’s perspective, they are crucial to her case.

25.  The amendments raise factual and legal issues that should be determined at trial. It cannot be said the amendments are bound to fail.

26.  In terms of prejudice to the Plaintiff, the Plaintiff will have the opportunity to further amend its pleadings. The Defendant is willing to bear the costs of consequential amendments.

Disposition

27.  I make the following orders:

(a) Leave be granted to the Defendant to appeal out of time against the Order of Master Yip dated 27 November 2025.

(b) The appeal be allowed and the Order dismissing the EOT Summons be set aside.

(c) Leave be granted to the Defendant to file and serve the RAD&CC in the form annexed to the Amendment Summons within 7 days.

(d) The Plaintiff be at liberty to file and serve any consequential amendments within 28 days thereafter.

(e) Costs of the Amended Summons be paid by the Defendant to the Plaintiff.

(f) There being no order as to the costs of this Appeal.