GOODWELL PROPERTY MANAGEMENT LTD v. LEE HUNG SINGAND OTHERS

DCCJ 1886/2016

[2018] HKDC 1455

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1886 OF 2016

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DECISION

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1.  This is a defamation action.  For determination initially are the following 2 summonses:-

(1)  The plaintiff’s application by summons dated 10 April 2018 to expunge a paragraph in each of the witness statements of the 1^st, 2^nd and 4^th defendants (“the defendants”) (“P’s Summons to Expunge”); and

(2)  The defendants’ application by summons dated 11April 2018 for specific discovery of certain documents under O 24 rr 7 and 11 (“D’s Discovery Summons”).

2.  In the circumstances explained below, both summonses were part-heard on 17 September 2018 and adjourned to 5 October 2018.  In the meantime, on 28 September 2018, the defendants took out a summons to amend their Amended Defence (“Ds’ 1^st Amendment Summons”) with a view to overcoming one of the plaintiff’s contentions in support of P’s Summons to Expunge.  By agreement of the parties, the substantive arguments of Ds’ 1^st Amendment Summons were heard on 5 October 2018 and I dismissed it with costs, with full reasons given orally then, essentially on the ground that it completely lacked the required particulars.

3.  Also on 5 October 2018, having finished hearing Ds’ Discovery Summons, I made an order for discovery of some of the documents sought with 70% of the costs to be paid by the plaintiff with certificate for counsel to be summarily assessed, with reasons to be given later.  P’s Summons to Expunge was again part-heard and adjourned to 26 October 2018.

4.  Then on 19 October 2018, the defendants took out yet another summons to amend their Amended Defence (“Ds’ 2^nd Amendment Summons”).  On 26 October 2018, again by parties’ agreement, I heard the substantive arguments thereon and reserved my decision.

5.  I now give my reasons for decision regarding Ds’ Discovery Summons and my decisions on Ds’ 2^nd Amendment Summons and P’s Summons to Expunge.

THE ACTION AND ITS BACKGROUND

6.  This defamation action is connected with the management of an estate known as the Apex situated at No 33 Wo Yi Hop Road, Kwai Chung, New Territories (“the Estate”).

7.  The plaintiff is a building management company.  It was appointed to be the Manager of the Estate by the DMC dated 21 December 2007 and has since been acting as such.

8.  All the defendants, at the material times, were residents of the Estate and, save the 1^st defendant, were also then members of the Owners’ Committee of the Estate.  So far as it concerns the 3^rd and 5^th defendants, this action was discontinued as against them at an early stage.  This action since then is pursued as against the defendants.

9.  This is an involved piece of litigation aggressively contested by both sides.  The Amended Defence is prolix, printed in small font of 12, running up to 41 pages; while the Amended Reply is equally so at 35 pages.

10.  The plaintiff claims that it was defamed by the contents of 4 letters in Chinese, respectively dated 21 January 2016, 26 January 2016, 21 February 2016 and 26 February 2016, and all published to all the owners of the Estate.

11.  The parts of the 4 letters said to carry defamatory meanings are lengthy and I do not think it necessary for the purpose of this decision to set out them.  Suffice to mention that the plaintiff claims that the letters have the following defamatory meanings, among others:-

“(a) The Plaintiff was responsible for causing and/or contributing to an inexplicable deficit in the Estate’s account;

(b) The Plaintiff was not truthful to the owners of the Estate in respect of the cause of the said deficit in the Estate’s account;

(c) The Plaintiff was not acting in the best interests of the owners of the Estate;

…

(f) The Plaintiff was not competent and/or failed to discharge its duty in a professional matter in acting as the Manager of the said Estate;

…     

(i) The Plaintiff deliberately concealed matters of importance from owners of the Estate;

(j) The Plaintiff was exploiting the owners of the Estate for its own gain;

…”[1]

12.  The issues relevant to the discovery sought relate to matters pleaded by way of the defence of justification which are repeated to also support the defence of fair comment and qualified privilege.  Numerous events and matters, going as far back to the time the Apex was just completed and occupancy began in late December 2007 up to the time of the publication of the 4 letters in early 2016, were pleaded in the Amended Defence as particulars of justification. 

13.  In gist, the origin and crux of controversies seem to be that the plaintiff on behalf of the Estate incurred large deficits in the early years, which according to the defendants were initially unexplained and later discovered to be unjustified, while the owners were asked to pay to make up for these deficits and at the same time had to pay a remuneration to the plaintiff proportionate to the amount of the total expenditure.  I will go into such parts of these issues and controversies that are relevant in due course.

14.  Regarding the amendments to the Amended Defence sought by the defendants and P’s Summons to Expunge, they relate to the defendants’ allegation that the plaintiff had a general bad reputation.  It is a distinct and quite separate matter.

15.  It is therefore convenient for me to first deal with Ds’ Discovery Summons.

DS’ DISCOVERY SUMMONS

The legal principles

16.  The general principles applicable to an application for specific discovery are well established.  It is convenient to adopt the following summary by Ng J in Jade’s Realm Ltd v Director of Land (Hong Kong Civil Procedure 2018 §24/7/2):-

(1)  There is no jurisdiction to make an order for specific discovery under RHC O 24 r 7 unless there is sufficient evidence or prima facie case that: (a) the documents or classes of documents exist which the other party has not disclosed; (b) the documents relate to a matter in issue in the action; and (c) the documents are in the possession, custody or power of the other party.

(2)  Once it is established that those three prerequisites for jurisdiction do exist, the court has a discretion whether or not to order discovery.

(3)  The court will not make an order unless the discovery sought is necessary either for disposing fairly of the cause or matter or for saving costs.

(4)  The order must identify with precision the documents or categories of documents which are required to be disclosed, for otherwise the person giving discovery may find himself in serious trouble for swearing to a false affidavit, even though doing his best to give an honest disclosure.

(5)  Where discovery is sought in relation to a class of documents, it is important that the class should not be defined or described too widely, and should not be defined so as to include documents which are not relevant.

(6)  Despite the Peruvian Guano test for relevance, “fishing” is not allowed, and discovery should not be oppressive.

17.  Another pertinent principle is this.  Although the pleadings and particulars will usually determine relevance to a matter in question, it may be wider than this: “the obligation to provide discovery… does not necessarily mean a matter on which issue has joined in the pleadings, but the documents must be matters to which an inference can properly be drawn that they are subject to controversy between the parties” (Wu Ching Sau v New World First Bus Services Ltd HCPI 767/2009, DHCJ Marlene Ng, [2010] HKEC 1393, unreported, at §66 and Hong Kong Civil Procedure 2018 §24/7/2).

The documents sought in D’s Discovery Summons

18.  They were itemized and set out in the Schedule to Ds’ Discovery Summons (“the Schedule”).

19.  Not all the items in the Schedule are now in issue, as some of them, namely items 2 and 6 to 18 were voluntarily discovered after the issuance of Ds’ Discovery Summons by the plaintiff’s 3^rd Supplemental List of Documents filed on 24 May 2018 (“P’s 3^rd List”).  Also, in the course of the hearing on 17 September 2018, the defendants indicated that they no longer pursued item 3.

20.  What remains outstanding therefore are items 1, 4 and 5 of the Schedule:-

“1. The detailed books and accounts of the Estate from 2007 to 2016, including the books and accounts for which the Plaintiff refused to provide copies but requested the members of the Owners Committee to visit the Plaintiff’s head office for inspection on 10^th August 2013, 9^th November 2013 and 18^th January 2014, as mentioned in paragraph 25 of麥錦全的證人陳述書 (Witness Statement of Mak Kam Chuen).

…

4. The 員工薪俸支出明細 (“detailed accounts of staff salaries and allowances”) of the Estate from 2007 to 2016, including those mentioned in document number 157 and 186 of the Plaintiff’s List of Documents.

5. The “2007年12月至2013年薪金列表” as mentioned in document number 185 and 157 of the Plaintiff’s List of Documents.”

The plaintiff is in possession of the documents sought

21.  It is not disputed that the documents sought in these items are in existence and are in the possession of the plaintiff.

Issues raised in the pleadings relevant to Ds’ Discovery Summons

22.  Relevant to the discovery sought are the following matters pleaded in some length in the Amended Defence by way of particulars of justification[2], which I paraphrase thus:-

(1)  The plaintiff has accounted the following categories of expenses as liability of the Estate[3] (which it should not have):-

(a) expenses incurred before the plaintiff was appointed as Manager and/or the DMC came into existence;

(b) expenses incurred by, or for benefit of, the developer of the Estate or its associated companies;

(c) expenses incurred without authorization, power, or compliance with the DMC and/or Owners’ Committee’s mandate; and

(d) expenses unreasonably incurred.

(2)  In just 11 days, from 21 to 31 December 2007, the plaintiff incurred a deficit of HK$722,771.14 for the Estate.

(3)  Then in the years 2008, 2009, 2010 and then 2012, the plaintiff further incurred the yearly deficits of respectively HK$2,558,500.75, HK$1,592,187.42, HK$504,293.26 and HK$440,197.18; with the total accumulated deficit at its height by the end of 2012 at HK$5,815,583.67.

(4)  Despite various demands by the Owners’ Committee made from August 2008 to June 2011, these large deficits were not explained by the plaintiff.

(5)  On 3 June 2011, the Owners’ Committee was allowed to inspect the books, accounts and transaction records of the Estate, but its request for copies was refused by the plaintiff who firmly prohibited the making of copies of the documents.

(6)  By late June 2011, an EGM of the owners resolved to establish an “auditing taskforce” which found 12 items/amounts of expenses totaling HK$3,999,829[4] which, according to the defendants, should not have been borne by the owners.  The more notable ones are as follows:-

(a) HK$95,699.78 for housewarming gifts made by the developer to the owners.

(b) Salary and allowance for staff not working for the management of the Estate, but for handing over the properties to respective owners on behalf of the developer and for curing defects which were subject to the warranty of the developer, in the sums of, in 2007/2008 approximately HK$1,580,000, and in 2009 approximately HK$550,000.  These approximated figures were arrived at by comparing such expenditures in 2007/2008 and 2009 with that of 2010 which was used as a base figure.

(c) Maintenance fees for repair works that the developer was responsible for during the warranty period - in 2007/2008 HK$437,927.35 and in 2009 HK$210,408.56.

(d) Repair works in 2009 not authorized by the Owners’ Committee in the sum of HK$667,950.03.

(7)  The plaintiff and the developer one Pearl Wisdom Limited were associated companies in that they were both wholly owned subsidiary of Cheung Kong Holdings Limited.

(8)  By 3 instances of increase made between 2012 to 2015, the management fees of the Estate were increased by a total of 21%.

(9)  In December 2015, the plaintiff proposed to increase the management fees by another 6% in 2016.

(10)  The general plea that the plaintiff had not acted reasonably, fairly and/or competently in discharging its duty as the Manager[5], apparently including the way it handled the queries and complaints in relation to these financial matters.

23.  I should mention that the proposed increase of management fees in December 2015 triggered another round of controversies which formed the immediate background to the writing and circulation of the said 4 letters.

24.  In the Amended Reply, the plaintiff pleaded the following which are also significant.

25.  Firstly, in response to the said paragraph 19(1A) of the Amended Defence, the plaintiff pleads positively in paragraph 8 ab iv of its Amended Reply that:-

“it is averred that all expenses incurred as liability of the Estate were for the benefit of the owners of the Estate, instead of for the benefit of the developer or its associated companies”. (my emphasis)

26.  Secondly, in the Amended Reply, there are pleaded 2 amounts as sums which the plaintiff agreed to “refund” and “not to charge” the owners of the Estate, in the following manner:-

(1) “8 ah. As to paragraph 19(1G),

i. It is averred that the said sum of around HK$556,958.57 (inclusive of the staff costs for the pre-management of the Estate in the sum of approximately HK$400,000) was “refunded” and deducted from the amount payable by the Owners of the Estate as expenses …”; and

(2) “8 an. …

 iv. … the Plaintiff agreed not to charge the owners of the Estate for such expenses [expenses for the housewarming gift] and the corresponding 10% manager remuneration (i.e. HK$63,800 + HK$6,380 = HK$70,180) in 2014”.

27.  These 2 pleas in paragraphs 8 ah i and 8 an iv, in my view, clearly raise the controversies as to whether these 2 sums had in fact previously been entered into the accounts of the Estate as being expenses of the Estate, and if so, how they were so entered, and whether they were justified as proper expenditures of the Estate; and if not, whether they should have been borne by the developer or its associated companies.

DOCUMENTS SOUGHT UNDER ITEM 1 IN DS’ DISCOVERY SUMMONS

28.  During the course of the opening speech by Mr Li, counsel for the defendants, it becomes apparent that the description of the documents sought - “the detailed books and accounts of the Estate from 2007 to 2016” - is imprecise and too wide and that the time period of “2007-2016” covers too long a period. Upon the defendants’ application which is not contested by the plaintiff, I allow the defendants to amend the description of the documents under this item to “the ledgers, management accounts and monthly statements of the Estate from 2007 to 2013”.

29.  The plaintiff submits that discovery in the amended description ought not to be given for the following reasons.

Irrelevant to any matter in issue, not probative, fishing?

30.  The plaintiff claims that these accounting documents are not relevant to any issue and/or are not probative and/or it is a fishing exercise.

31.  In his written submissions, Mr Chen, counsel for the plaintiff, referred to a selected number of pleas in the pleadings (not those set out above) and sought to analyze how the accounting documents are not relevant to them.  With respect, whether the accounting documents sought may or may not be related to those pleas he referred to is neither here nor there, if they relate to other issues in dispute.  I therefore do not find Mr Chen’s such analyses helpful and do not find it necessary to deal with them.

32.  It is beyond dispute that the crux and origin of parties’ controversies lie in the large amounts of expenditures and therefore deficits incurred in the early years.  The accounting documents sought (subject to limiting them appropriately) are clearly directly relevant.  Without the accounting documents, the defendants could not even begin to understand, not to mention examine and find out, the true nature and purposes of these expenditures.

33.  In my view, it is patently clear from the parties’ pleaded cases set out above that the accounting documents sought (again, subject to limiting them appropriately) are necessary for disposing fairly of at least the following issues in dispute:-

(1)  With respect to each item of those expenditures or groups of expenditures set out in paragraph 19(1M) of the Amended Defence (for which the “auditing taskforce” were not allowed to have copies of the related documents), whether they were actually spent by the plaintiff purportedly on behalf of the Estate; what were in fact the purposes of these expenditures?

(2)  What was in fact the nature and purpose of the expenditure in the sum of HK$556,958.57 (of which HK$400,000 is described as “the staff costs for the pre-management”) pleaded in paragraph 8 ah. i of the Amended Reply?

(3)  What was in fact the nature and purpose of the expenditure in the sum of HK$63,800 described as “such expenses [expenses for the housewarming gift]” and pleaded in paragraph 8 an. iv of the Amended Reply?

(4)  Were all of the above mentioned expenditures proper expenditures of and for the benefit of the Estate?

(5)  How were they actually recorded in the books of the Estate?

(6)  Compared to the answers to the questions above, what were the explanations, if any, hitherto given by the plaintiff to the owners in respect of them?

34.  Mr Chen also submits that this is a fishing exercise and cites Gatley on Libel and Slander 12^th ed. §31.6:-

“It is well established that, subject to CPR r31.6, a claimant is only obliged to give discovery in relation to the matters alleged in the particulars of justification, because the defendant is not entitled to fish for some other defence in the claimant’s papers.” (my emphasis)

35.  As I conclude above, the documents sought are directly relevant to the above mentioned issues and controversies that are already pleaded. Therefore, they are not sought to fish for some other defence.  I therefore reject the submission that this is a fishing exercise.

Disallowed altogether as the class too widely described?

36.  The thrust of this part of Mr Chen’s submission is this: as a general proposition, if the class of documents sought is too widely defined, the application for an order for specific discovery should be dismissed and that is the end of the matter.  He cites in support the following short passage from David Khan Incorporated v Conway Stewart & Company Limited [1972] FSR 169:-

“I therefore hold that an order under rule 7 as sought is not justified as the class of documents has been too widely defined. If, however, I am wrong in this … I would decline to make it in the exercise of the discretion … Alternatively… that the further discovery had not been shown to be necessary for disposing fairly of the issue …”.[6]

37.  David Khan was a patent case.  There the defendant sought a class of documents defined as “those relating to any transaction, negotiation, dispute or agreement between the plaintiff and the Mentmore Manufacturing Co Ltd (which had previously been a co-plaintiff)” concerning certain specified patents.  These documents were said to be relevant in that “it was reasonable to infer that in such negotiations there had been an acknowledgement by the plaintiff that a Mentmore patent contained a prior claim to claims of the plaintiff’s patent”; when the court there observed that whether there was a prior claim was a matter of construction of the patents and was strictly a matter of opinion and parties’ own expression of it could carry weight so slight as to be a matter of de minimis.

38.  David Khan therefore was just another instance of the application of the established principles set out in paragraph 16 above.  It was clearly decided on its own facts.  In my view, it does not support the general proposition contested for by Mr Chen.

39.  I stress again that where discovery is sought in relation to a class of documents, it is important that the class should not be defined or described too widely, and should not be defined so as to include documents which are not relevant.  However, when it is shown that the class is described too wide, it remains a matter of discretion whether the discovery application should therefore be dismissed or whether discovery in appropriately defined or narrower terms should be ordered.

40.  Regarding item 1, it is in my view very clear that the description of documents in its present amended form is still too wide and would include documents that are not relevant, in that the defendants seeks production of, among others, all the ledgers of all the accountsof the Estate. I have little doubt that such description would include ledgers of numerous other and sundry expenses that are outside the purview of parties’ present controversies.

41.  That notwithstanding, in this case, I take the clear view that I should order discovery in appropriately narrower terms for the following reasons. Firstly, certain accounting documents in the possession of the plaintiff are clearly directly relevant (as I conclude above), which the plaintiff itself on several previous occasions allowed their perusal by the Owners’ Committee, but they thus far have refused to produce to the defendants.  Secondly, dismissal of the application for discovery of this item would mean that the defendants would have to make yet another application later with the attendant delay and costs.  This would not be in accord with the underlying objectives in O.1A, r.1. Thirdly, the plaintiff is not able to put forth any prejudice it might thereby suffer that cannot be compensated by costs.

42.  Since this hearing has to be part-heard because of a matter connected to the plaintiff’s objection that the documents sought have already been produced, I have indicated to parties that I am minded to order discovery in appropriately narrower terms and ask the parties to attempt to work together to achieve that.  I especially ask (however, not direct or order) the plaintiff to provide to the defendants a list of the “accounts” in its accounting system so that hopefully parties can agree to limit discovery to the ledgers of some of the “accounts” only.

43.  However, in the resumed hearing on 5 October 2018, I am informed that the plaintiff has not done so and no attempt to work together along that line has been made.  Parties and their legal representatives are reminded that under Order 1A r 3 they are under a duty to assist the court to further the underlying objectives, especially in the context of the court actively managing the case to encourage the parties to co-operate with each other (pursuant to Order 1A r 4(2)(a)).  Failure to do so should attract adverse costs consequences.  I will bear that in mind in the exercise of my discretion on costs.

Discovery of the list of “accounts” in the plaintiff’s accounting system

44.  In the plaintiff’s accounting software, the ledgers are called “accounts”.  While the Owners’ Committee’s “auditing taskforce” did allegedly identified certain expenditures or groups of expenditures which are pleaded in paragraph 19(1M) of the Amended Defence, it is not clear in which of the “accounts” such expenditures or parts of them were recorded in.  It is also not known which “accounts” were grouped together and reported as which item in the management accounts of the plaintiff.  In other words, the list of “accounts” is a “map” essential to understanding the accounting system of the plaintiff and the accounting documents to be produced in relation to these expenditures and the 2 sums pleaded in the Amended Reply.  Its production therefore is necessary for the fair disposal of the issues in dispute.

45.  As said, despite my asking on 17 September 2018, the plaintiff has refused to make available this list.  On 5 October 2018, the defendants formally apply to amend item 1 to include this list of “accounts”.  The plaintiff objects.  I allow the amendment.  Having further heard the plaintiff and viewing it as necessary for the fair disposal of the disputes, I order its discovery.

Class of documents sought have already been produced?

46.  In the course of argument on 17 September 2018, the plaintiff submits that by the voluntary discovery by P’s 3^rd List filed on 24 May 2018, the documents sought under this item were already produced.

47.  However, from the papers placed before the court, the court cannot form the slightest idea as to what documents were actually discovered by P’s 3^rd List.  It is so because of these.

48.  Under items 6 to 18 of the Schedule, the defendants sought discovery in similar terms as follows; and by way of example, I need only cite 3 of them:-

“6. The attachments to document number 149 of the Plaintiff’s List of Documents.

7. The attachments to document number 150 of the Plaintiff’s List of Documents.

8. The attachments to document number 151 of the Plaintiff’s List of Documents.”

49.  To provide voluntary discovery of documents corresponding to those sought under items 6 to 18 of the Schedule, the plaintiff listed items 203 to 215 in P’s 3^rd List in similar terms, and by way of example, again I need only cite 3 of them:-

“203. The attachments to item number 149 of Supplemental List of Documents of the Plaintiff dated 27^th November 2017

204. The attachments to item number 150 of Supplemental List of Documents of the Plaintiff dated 27^th November 2017

205. The attachments to item number 151 of Supplemental List of Documents of the Plaintiff dated 27^th November 2017”.

50.  Such manner of describing the class of documents sought in a summons for specific discovery is entirely unacceptable.  It is a trite requirement that the documents or the class of documents sought in an application for specific discovery must be identified with precision.  They should not be identified or described by reference (or even multiple references, as in this case) to some other documents unless that is the only means that the document or the class of documents can be properly identified; but those instances should be very rare. An application for discovery with the documents sought so improperly described is liable to be summarily dismissed.

51.  Such manner of describing the documents disclosed in P’s 3^rd List is equally unacceptable, as such fails to comply with Order 24 r 5, which states that:-

“A list of documents … must enumerate the documents in a convenient order and as shortly as possible but describing each of them or, in the case of bundles of documents of the same nature, sufficiently to enable it to be identified” (my emphasis)”.

I would leave it to the judicial officer in charge of case management on the next occasion to consider whether to expunge P’s 3^rd List out of the court file as being not a proper list of documents.

52.  In the result, what documents were actually produced under P’s 3^rd List are not at all readily ascertainable.  Moreover, such information has not been set out in any of the plaintiff’s affirmations, nor in its counsel’s written submissions, despite the fact that it is its ground of objection.  On 17 September 2018, I adjourn the hearing of Ds’ Discovery Summons part-heard and proceed to hear P’s Summons to Expunge.  I direct the plaintiff to take the initiative to list out the documents produced under P’s 3^rd List so as to ascertain to what extent the documents sought under item 1 were actually produced; and hopefully parties can come to some agreement.

53.  In the resumed hearing on 5 October 2018, the plaintiff only very generically describes 5 classes of accounting documents, that it says have been produced under P’s 3^rd List.  That is not the “listing out of the documents” that I directed.  In order not to occasion another adjournment, the court briefly inspects the documents available - being the attachments to item 205, 210 and 215 in P’s 3rd List, as being some of the documents that were produced that purportedly correspond to the request under item 1 of the Schedule.  They are voluminous and amount to over 1000 pages.  It is found that the generic descriptions of the 5 classes of documents said to have been produced are in fact full of inaccuracies.  The “Quarterly Income and Expenditures with ledgers of the Estate for the year 2007” said to have been produced in the attachments to item 205 in fact were not included.  The accounting documents for some of the months said to have been included were missing.  The so-called “ledgers” were “Account Transaction Reports” of certain “accounts”.  The so-called “Balance Sheet of the Estate for the period from January 2009 to September 2009” being attachments under item 215 were in fact Consolidated Balance Sheets.  In sum, I find unreliable the plaintiff’s such list of the 5 classes of documents said to have been produced. 

54.  More importantly, it is not known whether the “ledgers” or the “accounts” pertaining to the particular expenditures or groups of expenditures pleaded in paragraph 19(1M) of the Amended Defence were included.

55.  In the circumstances, since the burden of making good the objection lies with the plaintiff, I find that the plaintiff has failed to do so.

Discovery ordered under item 1

56.  For the above reasons, I order discovery sought under item 1, but to be in terms more limited than its description under the Schedule.  Having carefully considered the issues and controversies in dispute and bearing in mind the underlying objective of proportionality and ordering only those that are necessary for the fair disposal of the issues and controversies, I order the discovery of:-

(1)  A list of all the “accounts” of the Estate in the plaintiff’s computerized accounting software system containing the names, and a brief description of the nature of each, of these “accounts”;

(2)  The monthly management accounts of the Estate from 2007 to (and including) 2010;

(3)  All the Account Transaction Records in the books and accounts of the Estate in which the following sums, or part thereof, were entered or recorded, and all their supporting documents and vouchers, namely

(a) The 12 sums pleaded in the table under paragraph 19(1M) of the Amended Defence;

(b) The sum of HK$556,958.57 pleaded in paragraph 8 ab (i) of the Amended Reply being a deduction from the amount payable by the owners of the Estate agreed to be deducted by the plaintiff; and

(c) The sum of HK$63,800 pleaded in paragraph 8 an (ii) and (iv) of the Amended Reply being a sum the plaintiff agreed not to charge the owners of the Estate.

57.  I find the discovery of the management accounts necessary as I observe above that apart from the purpose of the various expenditures or groups of expenditures, how and where they were recorded in the books of the Estate is also relevant vis-à-vis the explanations about them, if any, that were given to the owners.

58.  The parties also dispute as to the years the discovery of the management accounts should cover.

59.  The plaintiff submits that it should cover only up to and including 2009, as the last sum in terms of time of the said 12 sums pleaded in paragraph 19(1M) of the Amended Defence occurred in 2009.

60.  The defendants seek them up to 2013, but submit that the fallback position is that it should cover up to 2010.  That is so as on present materials, the way the defendants come up with an estimate of the extra staff costs paid for the purpose of handing over flats to new owners (which costs they say should have been borne by the developer) is by comparing such expenditures to those in 2010 (when the handing over of flats to new owners was essentially completed) as the base figure.

61.  I am of the view that it is fair to allow the defendants an opportunity to pursue their such point in the said manner.  Discovery of the management accounts up to and including 2010 would therefore be necessary for its fair disposal.  I therefore order discovery of the management accounts up to 2010 as per paragraph 56(2) above.

DOCUMENTS SOUGHT UNDER ITEMS 4 AND 5 IN DS’ DISCOVERY SUMMONS

62.  These two items can be dealt with together.

63.  Under items 4 and 5, the defendants seek discovery respectively of “員工薪俸支出細明” (detailed accounts of staff salaries and allowances) of the Estate from 2007 to 2016 and “2007年12月至2013年薪金列表”.  In the course of argument, Mr Li indicates that the defendants would now seek these documents up to the year 2011 only.

64.  These documents have previously been provided by the plaintiff to the Owners’ Committee of the Estate to peruse, as follows:-

(1)  In respect of item 4, according to a letter dated 18 October 2013 by the plaintiff addressed to the then chairman of the Owners’ Committee[7], one Mr. Yung and copied to all its members, the “員工薪俸支出細明” had been provided to the representative(s) of the Owners’ Committee on 10 August 2013 and 14 September 2013 for perusal.

(2)  In respect of item 5, according to another letter dated 17 October 2013 by the plaintiff addressed to the 3^rd defendant in his capacity as Secretary of the Owners’ Committee[8], members of the Owners’ Committee could upon prior appointment come to the plaintiff’s office to peruse the “2007年12月至2013年薪金列表”.

65.  It is not seriously disputed that the defendants were not members of the Owners’ Committee at the time when the above documents were provided to the then Owners’ Committee to peruse.  Significantly and in any event, copies of these documents have not been provided.

66.  It can be recalled that these 2 items of documents relate to the defendants’ allegations that salary and allowance for staff were treated as liability of the Estate when in fact these staff did not work for the management of the Estate, but for handing over the properties to respective owners on behalf of the developer and for curing defects which were subject to the warranty of the developer.  According to the defendants, such staff salary and allowance amounted to approximately HK$1,580,000 in 2007/2008, and approximately HK$550,000 in 2009, which they approximated by comparing such expenditures in 2007/2008 and 2009 with those of 2010 which are used as a base figure[9].

67.  As I understand it, Mr Chen submits that the discovery of the documents described under these 2 items is not necessary as at the time of the publication of the 4 letters, such staff costs no longer formed part of the deficit as the plaintiff has already agreed on 8 February 2010 to “deduct a total sum of HK$556,958.57 from the amount payable by the owners of the Estate”[10]. With respect, that is the point of view of the plaintiff only, which clearly is disputed by the defendants under paragraph 19(1M) of their Amended Defence, which as mentioned alleges that the amount involved totaled to over HK$2 million.

68.  I am of the view that the documents sought are necessary for the fair disposal of this aspect of the parties’ controversies.  However, as I mention in the paragraphs 60 and 66 above, the information disclosed by these documents for the year 2010 is now relied on by the defendants as the base figure, there is no other valid reason to extend their discovery to include the year 2011.  I therefore only order their discovery up to 2010.

COSTS OF DS’ DISCOVERY SUMMONS AND THEIR SUMMARY ASSESSMENT

69.  At the end of the hearing and having heard submissions from parties, I order that the plaintiff do pay the defendants 70% of their costs with certificate for counsel to be summarily assessed.  Below are my reasons for so ordering.

70.  Mr Li asks that costs to follow the event.  Mr Chen submits that costs should be in the cause or alternatively the defendants should be awarded only 30% of their costs.  He relies on 2 matters.

71.  Firstly, as shown by the filing of P’s 3^rd List on 24 May 2018, the plaintiff has been willing to provide a substantial part of the discovery sought (items 2, 6-18 in the Schedule); but the defendants have not sought them by correspondence prior to the issuance of Ds’ Discovery Summons. There is some validity in this criticism.  However, in the affirmation of麥錦全filed on behalf of the plaintiff on 14 May 2018, items 2, 6 to 18 were not addressed to, probably in anticipation of the voluntary discovery, such that no or little cost were spent by the plaintiff to oppose them.  That said, such part of the defendants’ costs in preparing the application in relation to these items ought not be allowed.

72.  Secondly, the plaintiff says that it has to an extent been successful in that it has narrowed the ambit of the discovery, especially in relation to item 1.  That may be so.  However, in the affirmations filed on behalf of the plaintiff and in the plaintiff’s written and oral submissions, the plaintiff’s position and all the arguments advanced were geared towards the complete dismissal of the application, which I hold against.  Moreover, little (if any) constructive efforts were put forth by the plaintiff to assist in arriving at the appropriate ambit of discovery in terms of classes or categories of documents necessary to be produced to enable a fair and just resolution of the parties’ disputes.

73.  I do not think these matters warrant the costs of this application to be tied to the ultimate success or otherwise of this action.  Making such costs to be in the cause is not appropriate.

74.  Considering these matters, the conducts of the parties including the failure by the plaintiff to cooperate as set out in paragraph 43 above and in the round, I think the fair costs order is the one set out above.

75.  I have considered the defendants’ statement of costs dated 12 October 2018, the plaintiff’s objections dated 19 October 2018 and the defendants’ reply dated 23 October 2018.  I accept the plaintiff’s objections to these limited extents: (a) the rate of the fee earner should be reduced from HK$3,860/hour, but to HK$3,460/hour, (b) the preparation of the index of the hearing bundle and the collating of documents can be done by a legal executive, (c) there should be some reduction in the hours under items B and C, and (d) there should be some reduction in the counsel fees charged but not to the extent advocated by the plaintiff.

76.  In the round and by means of a broad-brush approach, I summarily assess the defendants’ costs of this application at HK$150,000.  70% of that is HK$105,000, to be paid by the plaintiff forthwith.

DS’ 2^ND AMENDMENT SUMMONS

77.  By this proposed amendment, the defendants seek to re-amend their Amended Defence by adding the underlined part to the present paragraph 3:-

“3. Paragraph 1 is not admitted except it is denied that the Plaintiff previously had and currently has good character or reputation. The 1^st, 2^nd and 4^th Defendants aver that the Plaintiff previously had and currently has a general bad reputation in the sector real property management. In particular:-

(i)  On or around 14^th March 2009, it was reported that the Plaintiff had instructed security guards to prevent owners of an estate managed by the Plaintiff from entering the owners’ meeting;

(ii)   In or around September 2009, it was reported that the Plaintiff was removed from the position of manager of an estate because of its poor management services;

(iii)  In around September 2010, it was reported that owners of an estate managed by the Plaintiff were dissatisfied with the management services and subsequently removed the Plaintiff by an extraordinary meeting of owners;

(iv)  In around September 2010, it was reported that owners of an estate managed by the Plaintiff were dissatisfied with the management services and proposed to remove the Plaintiff by an extraordinary meeting of owners;

(v)  On or around 28^th March 2011, it was reported that over 100 owners of an estate managed by the Plaintiff expressed dissatisfaction of the managerial services by the Plaintiff and resolved to convene another meeting of owners to establish owners’ incorporation;

(vi)  On or around 11^th June 2011, it was reported that owners of an estate managed by the Plaintiff proposed to remove the Plaintiff by an extraordinary meeting of owners;

(vii)  On or around 6^th December 2011, it was reported an estate managed by the Plaintiff was bundled with the broadband services provided by Hutchison Global Communications Limited.  The Consumer Council stated that such bundled sale may amount to anti-competition conduct;

(viii)  On or around 3^rd August 2013, it was reported that an owner of an estate managed by the Plaintiff had, through the Equal Opportunities Commission, sued the Plaintiff and another management company in District Court for disability discrimination in the management of the estate;

(ix)  On or around March 2016, it was reported that owners of an estate managed by the Plaintiff was dissatisfied of the management services by the Plaintiff and convened owners’ meeting for the establishment of the owners’ incorporation; and,

(x)  On or around 2 May 2016, it was reported that, in early 2016 the Plaintiff insisted a 6% increase of management fees of the Estate.  It was also reported that the Estate has incurred a deficit over 4.5 million in the past 9 years.  The owners of the Estate convened a meeting of owners for the establishment of owners’ incorporated to balance the power of the Plaintiff.”

78.  The proposed amendment adds the plea that the plaintiff previously had and currently has a general bad reputation in the real property management sector and pleads as particulars “reports” of 10 incidents involving the plaintiff.  Roughly categorized, these 10 incidents, as reported, involve:-

(a)  2 incidents (pleaded in subparagraphs (ii) and (iii)) in which the plaintiff was actually removed as the manager of the estate.

(b)  2 incidents (pleaded in subparagraphs (iv) and (vi)) in which there were proposals by owners of the estate to take steps to remove the plaintiff as manager;

(c)  3 incidents (pleaded in subparagraphs (v), (ix) and (x)) in which owners “expressed dissatisfaction” and took steps to establish an “owners’ incorporation”;

(d)  2 incidents (pleaded in subparagraphs (vii) and (viii)) in the nature of some sort of complaints against the plaintiff; and

(e)  1 incident  (pleaded in subparagraph (i)) in which the plaintiff allegedly prevented owners from entering the owners’ meeting.

79.  The plaintiff objects to the proposed amendment on 2 grounds:

(a)  the lesser one being that material particulars required are missing; and

(b)  the main one that the matters pleaded as particulars are inadmissible.

Insufficient particulars

80.  The requirement to plead particulars of facts relied on in mitigation of damages in defamation cases, and to plead them with as much particularity as is reasonable having regard to the circumstances and to the nature of the acts alleged, is well settled.  It is not seriously disputed by the defendants.  As stated in Gatley on Libel and Slander §27.39 and §26.3:-

“The well-established practice is for the defendant specifically to plead in his defence particulars of any facts on which he relies in mitigation of, or otherwise in relation to, the amount of damages claimed. The plea must be clear and precise. Matters pleaded may include …. . A defendant may also plead in mitigation of damages the claimant’s general bad reputation…”;

and

“The degree of particularity required will of course depend upon the facts of each case. However, as a general rule, as much certainty and particularity must be insisted on as is reasonable having regard to the circumstances and to the nature of the acts alleged.”

81.  Mr Chen submits, and I agree, that clearly lacking in the proposed amendment are:-

(a)  the name of the estate involved in each of the reported incident;

(b)  the names of the media in which such were reported; and

(c)  apart from the names of the media, all the other particulars necessary for the purpose of identifying the particular reports.

82.  Without these particulars, the plaintiff would not be informed as to the precise reports or incidents relied on by the defendants and would not be in a position to respond to them.

83.  As said, this is the lesser of the objections.  I turn to consider the main one.

The exclusionary principles laid down in Scott v Sampson;  Burstein v Times Newspapers Ltd

84.  I can conveniently start with the case of Scott v Sampson[11].

85.  In that case, Cave J after reviewing the authorities held that (a) general evidence of reputation or bad character was admissible, but (b) evidence of rumours of and suspicions to the same effect as the defamatory matter complained of and (c) evidence of particular facts tending to show the character and disposition of the claimant were not.

86.  The learned judge set out the principles underlying admitting evidence in (a) as follows:-

“Speaking generally the law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action. The damage, however, which he has sustained must depend almost entirely on the estimation in which he was previously held. He complains of an injury to his reputation and seeks to recover damages for that injury; and it seems most material that the jury who have to award those damages should know if the fact is so that he is a man of no reputation. “To deny this would,” as is observed in Starkie on Evidence, “be to decide that a man of the worst character is entitled to the same measure of damages with one of unsullied and unblemished reputation. A reputed thief would be placed on the same footing with the most honourable merchant, a virtuous woman with the most abandoned prostitute. To enable the jury to estimate the probable quantum of injury sustained a knowledge of the party’s previous character is not only material but seems to be absolutely essential.””[12]

87.  The principle for not admitting evidence in (b), as explained by Cave J, was this:-

“If these rumours and suspicions have, in fact, affected the plaintiff’s reputation, that may be proved by general evidence of reputation. If they have not affected it they are not relevant to the issue. To admit evidence of rumours and suspicions is to give any one who knows nothing whatever of the plaintiff, or who may even have a grudge against him, an opportunity of spreading through the means of publicity attending judicial proceedings what he may have picked from the most disreputable sources, and what no man of sense, who knows the plaintiff’s character, would for a moment believe in. Unlike evidence of general reputation, it is particularly difficult for the plaintiff to meet and rebut such evidence; for all that those who know him best can say is that they have not heard anything of these rumours. Moreover, it may be that it is the defendant himself who has started them.”[13]

88.  As regards evidence in (c), the learned judge held:-

“… both principle and authority seem equally against its admission. At the most it tends to prove not that the plaintiff has not, but that he ought not to have, a good reputation, and to admit evidence of this kind is … to throw upon the plaintiff the difficulty of shewing an uniform propriety of conduct during his whole life. It would give rise to interminable issues which would have but a very remote bearing on the question in dispute, which is to what extent the reputation which he actually possesses has been damaged by the defamatory matter complained of.”[14]

89.  A main concern addressed by this general exclusionary rule is a matter of practical trial management – there is the risk, if such excluded evidence is admitted, of roving inquiries into the plaintiff’s character or disposition which would be hard to control, leading to trials within a trial[15]; while the evidence in category (c) tends to prove not that the plaintiff has not, but that he ought not to have, a good reputation.  In this regard and as acknowledged in the authorities, the court nowadays is better equipped with various case management powers to guard against this.

90.  This general exclusionary rule, however, has never been absolute[16].

91.  In Burstein v Times Newspapers Ltd[17], the English Court of Appeal admitted for the purpose of mitigating damages evidence of particular facts which were directly relevant to the contextual background in which a defamatory publication came to be made even though they might include matters which were not causally connected with the publication of the libel, or which concerned the claimant’s general reputation, character or disposition, or which consisted of facts that in other circumstances might have been ingredients of a defence of justification.

92.  In the subsequent Court of Appeal case of Turner v News Group Newspaper Ltd[18], it is clarified that:-

“What constitutes the directly relevant background will vary from case to case … The Court of Appeal in Burstein’s case was concerned to avoid jurors having to assess damages while wearing blinkers. If evidence is to qualify under the principle spelt out in Burstein’s case, it has to be evidence which is so clearly relevant to the subject matter of the libel or to the claimant’s reputation or sensitivity in that part of his life that there would be a real risk of the jury assessing damages on a false basis if they were kept in ignorance of the facts to which the evidence relates.”[19]

Discussion

93.  Mr Chen submits that all the 10 incidents particularized in the proposed new paragraph 3 are either rumours and suspicions or are specific acts, within respectively categories (b) and (c) of the rule in Scott v Sampson.

94.  In my view, of the 10 incidents particularized in the proposed paragraph 3, 8 of them fall foul of the rule in Scott v Sampson and are inadmissible, as follows.

95.  The incident pleaded in sub-paragraph (i) clearly is a particular fact in an attempt to show the character or disposition of the plaintiff, and therefore to show the allegedly bad reputation it ought to have.  It falls within category (c) in the rule of Scott v Sampson and is inadmissible.

96.  The incident pleaded in sub-paragraph (vii) concerns a “report” that “an estate managed by the plaintiff was bundled with the broadband services provided by Hutchison Global …”.  It is not at all clear what “was bundled with” means or is intended to mean.  Of itself and without more (such as, Hutchison Global’s services were inferior to and yet more expensive then those offered by others), engaging Hutchison Global’s service in the estate managed by the plaintiff should not per se attract criticism.  This incident is in the nature of a suspicion.  In any event, this incident can best be a particular fact to show disposition.  It is inadmissible.

97.  Sub-paragraph (viii) pleads that an owner of an estate managed by the plaintiff had, through the Equal Opportunity Commission, sued the plaintiff for disability incrimination in the management of the estate.  The proceedings were pleaded to have been commenced on or around August 2013.  Yet now in October 2018, it is not pleaded whether the plaintiff was found guilty.  For all we know, the allegations in the proceedings may be totally groundless.  The mere fact that proceedings were commenced is in its nature a suspicion only; and as such, is inadmissible.

98.  Sub-paragraphs (v), (ix) and (x)[20] plead that in 3 estates, the owners respectively “expressed dissatisfaction” and “were dissatisfied” and took steps to establish an owners’ incorporation (as opposed to removing the plaintiff as manager).  For the below reasons, I hold these 3 incidents inadmissible.

(a)  Firstly, taking steps to establish an owners’ incorporated could be a neutral matter so far as it concerns the manager, as owners could and often would have their own reasons for so doing that may have nothing to do with the quality, or their perception of the quality, of the service of the manager.  In fact, in this case, it is not even pleaded that the owners actually set up an owners’ incorporated.

(b)  Secondly, the allegations that the owners “expressed dissatisfaction” and “were dissatisfied” are matters that are so subjective and vague.  In my view, they are in the nature of “rumours” within category (b) of the rule in Scott v Sampson.

(c)  Thirdly, in my view, the fact that certain number of owners voiced dissatisfaction is of only so slight a probative value to the key issue: what sort of reputation the plaintiff in fact has; while there is a very high risk that there would be “trials within a trial” as to the details of various facets of these 3 incidents, if they are admitted, such as : exactly how many owners voiced dissatisfaction compared to the total number of owners?  What was the dissatisfaction about (and different owners may have different “dissatisfaction”)? Whether and to what extent the matters the dissatisfaction related to were true ? and whether there were good explanations for them and so on.

99.  Sub-paragraphs (iv) and (vi) plead 2 incidents in which the owners proposed to remove the plaintiff as manager.  Presumably, the proposals were not taken further or were not unsuccessful, as otherwise it would have been so pleaded as in sub-paragraphs (ii) and (iii).  As such, in my view,

(a)  they are not dissimilar to the 3 incidents pleaded in sub-paragraphs (v), (ix) and (x) and are also in the nature of “rumours and suspicions” within the rule of Scott v Sampson; and

(b)  their probative value to the issue at hand is also so very slight while there is also a very high risk that there would be “trials within a trial” into them.

I therefore hold that they are inadmissible.

100.  I take a different view as to the 2 incidents pleaded in sub-paragraphs (ii) and (iii).  In these 2 incidents, the plaintiff was actually being voted out and removed as the manager by the owners.  These were concerted acts by the respective owners of these 2 estates; they are not rumours or suspicions.  I think it very arguable, that by the acts of voting the plaintiff out, these owners were saying “we do not want the plaintiff to be the manager of our estate”; that these acts were expressions of the estimation in which the plaintiff stood in the opinion of those owners who belonged to a relevant sector of the public, namely owners of estates who used the service of building managers.  In my view, they are therefore directly relevant contextual background within the Burstein’s case as matters so clearly relevant to the plaintiff’s reputation.

101.  In relation to these 2 incidents, I think the practical concern of introducing “trials within a trial” or roving inquiries is relatively minor. It is unlikely that the fact that the plaintiff was removed would be contested.  There may be some examinations as to the reasons for such removal and the percentage of the votes and so on – matters that clearly could be managed by the trial judge.

102.  I also bear in mind that this is an application to amend pleadings to facilitate the determination of the real question in controversy, and should be allowed unless there is an obviously good reason not to do so or that the amendment is not necessary for disposing fairly of the matter.

103.  By the above reasons, I do not hold the incidents pleaded in sub-paragraphs (ii) and (iii) inadmissible.

Disposal

104.  I will therefore order:-

(1)  leave be to the defendants to file and serve an Re-Amended Defence within the next 14 days amending paragraph 3 of their Amended Defence per the draft attached to the summons but without sub-paragraphs (i), (iv) to (x) and provided that the following particulars are furnished and added to the draft sub-paragraphs (ii) and (iii), namely:-

(a) the name of the estate involved in each of the 2 reported incidents;

(b) in respect of the report(s) in respect of each incident, the name(s) of the media in which such was reported; and

(c) apart from the names of the media, all the other particulars necessary for the purpose of identifying each report;

(2)  the plaintiff do have leave to make consequential amendments to its Amended Reply, if so advised, and to file and serve its Re-Amended Reply within 21 days then after;

(3)  liberty to apply within 14 days after the defendants have filed and served the Re-Amended Defence in case there is argument over whether sufficient particulars (as mentioned in (1) above) have been furnished; and

(4)  on a nisi basis, the plaintiff is to have the costs of Ds’ 2^nd Amendment Summons with certificate for counsel save and except that there is no order as to the costs of its hearing, such costs to be summarily assessed.

105.  I make the said costs order nisi since the amendment is an indulgence sought by the defendants, while I consider provisionally (not having heard counsel on this) that each party has won part and lost part of the application.  This costs order nisi is to become absolute unless an application to vary is made by summons within 14 days of this decision.

P’S SUMMONS TO EXPUNGE

106.  By this summons, the plaintiff seeks to expunge a paragraph from each of the witness statements of the 1^st, 2^nd and 4^th defendants, which so happens are all numbered as 74 (“Paragraph 74”).   They are in exactly the same terms:-

“74. 最重要的是，高衞作為管理公司的行為，早就在市民和小業主中被廣泛批評和報導。以下是相關新聞的列表：—

時間	報導
2009年3月14日 蘋果日報	沙田銀禧花園業主立案法團召開業主大會，表決維修方案。高衞派出多名保安員到場，並一度阻止業主進場。另外雙方就誰人有權主持會議出現爭執，多名小業主在場外與保安員對峙兩小時。其間有小業主不滿，一度鼓譟，並報警求助。
2010年9月 蘋果日報	大坑龍華花園業主立案法團舉行特別業主大會，決定罷免長實旗下高衞物業管理，原因為業主不滿高衞管理質素差劣，當中停車場長期滲水無人理會以及管理員永遠開啟入口大門任由訪客出入屋苑等等。於同年年中罷免長實旗下高衞物業管理，高衞須於2010年9月30日撤出屋苑。
2010年09月25日 蘋果日報	屋苑管理差兩法團響應起義反長實星火燎原 小業主反長實運動正星火燎原。繼馬鞍山聽濤雅苑後，九龍塘畢架山一號業主立案法團，不滿長實子公司高衞管理質素惡劣。決定揭竿起義。法團狠批高衞花光屋苑基金，但設施依然失修，保安人手又嚴重不足，入夜後數幢樓只有1名保安員，下周二將舉行業主大會表決踢走長實。另長實屋苑火炭銀禧花園，也加入抗爭行列。
2010年9月26日 蘋果日報	長實又惡晒打倒起義派聽濤雅苑罷免高衞僅敗 聽濤雅苑業主立案法團召開特別業主大會，決定是否罷免長實旗下高衞物業管理以減少收取經理人酬金（水平為總開支的5%）。高衞被指派出大批職員到席抹黑業主立案法團，以圖拖延表決時間。及後，表決結果77%業主贊成罷免22%反業。由於屋苑部份業主未有出席投票，贊成罷免業權份數只屋苑所有業權份數46%，未夠法定的50%可罷免公契經理人的業權份數，故高衞未來會繼續管理屋苑。
2010年9月29日 蘋果日報	畢一小業主勝利！起義成功踢走長實 九龍塘畢架山一號業主立案法團昨晚在會所舉行特別業主大會，大比數通過罷免長實旗下高衞物業管理公司的議案。這次豪宅起義引起高度關注，公民黨及民主黨立法會議員均有出席，其中涂謹申形容是「小業主團結的勝利」，但昨晚只是一個開始，業主仍需努力維護良好屋苑管治。
2011年3月28日 蘋果日報	何文田豪宅半山壹號逾100名業主3月20日舉行業主大會，抗議長實及旗下負責管理屋苑的高衞樓宇及物業管理質素欠佳。報導指，半山壹號被多名業主批評住宅內部牆角滲水及牆身爆裂，單位食水有陣陣異味，商場遲了一年仍未啟用。惟高衞表示，承建商已跟進業主投訴單位滲水及裂紋問題，又指改善工程已獲業主簽署確認滿意。當中，有業主罷交管理費作抗議，而一眾業主決定4月1日再舉行業主大會商議籌組法團，若成功首要事項便是罷免高衞。
2011年06月11日 明報	業主大會衝突1人被捕聽濤雅苑炒管理公司失敗 馬鞍山聽濤雅苑小業主與管理公司高衞物業糾紛仍未解決。聽濤雅苑昨日舉行業主大會，就是否罷免高衞表決，其間疑有人未能在大會上發表意見發生爭執推撞，一名53歲男子因涉嫌普通襲擊被捕。罷免案最後雖獲42%業權份數支持，但未超過法定的一半業權，未能罷免高衞，大批小業主失望而回。 聽濤雅苑小業主與長實（0001）旗下的高衞物業管理「結怨」已久，一批小業主不滿高衞服務，去年9月26日曾召開特別業主大會，嘗試罷免高衞但不成功，反高衞力量昨日捲土重來，希望能夠將高衞「炒魷魚」。
2011年12月06日 明報	管理費包寬頻恐觸犯反競爭 長實發展的泓景臺及嵐岸曾被揭綑綁和記寬頻服務，消委會專家指綑綁式銷售有可能構成反競爭，指出柯達賣影印機綑綁維修服務，便曾在美國被起訴，因為消費者購買服務時並無足夠資料作判斷。 長實旗下的高衞物業管理及港基物業管理昨回覆，對寬頻服務商在屋苑提供服務持開放態度，而選用供應商應由業主委員會或法團決定。
2013年8月3日 東方日報	輪椅漢告屋苑管理殘疾歧視 居於馬鞍山私人屋苑海栢花園的輪椅代步男子，日前透過平等機會委員入禀區院，控告該屋苑的兩間物業管理公司殘疾歧視，他指該址的公共範圍內出入通道的配套裝置上，沒有配合輪椅使用者的需要，甚至造成障礙，令他及其他輪椅使用者出入該屋苑時有極大困難，亦無法享用屋苑會所設施。他曾多次提出加裝設備的要求，但遭管理公司否決，故興訟要求法庭強制管理公司加設裝置及索償。
2016年3月 蘋果日報	長沙灣丰滙，高衞物業管理有限公司為屋苑公契經理人，超過5%業權居民定於2016年3月19日安排舉行業主大會，投票成立業主立案法團，有效監察管理公司服務表現。而高衞得悉3月19日舉行大會之際，促忙急於3月12日先行舉行業主大會組織業主委員會，力圖阻止業主立案法團成立。居民更於短時間內於信箱收取到4封所謂「幾位小業主」的疑似抹黑信，反而令超過一半小業主於3月19日業主大會親身投票，向「對方」說不。2016年10月，小業主更透過召開特別業主大會，取得超過50%業權成功換走公契經理人-高衞物業管理有限公司，透過小業主投票揀選佳定物業管理有限公司作為合約經理人，成功將管理公司酬金大副度減低。丰滙入伙不足14個月，成功踢走高衞，香港私人屋苑罕見。
2016年05月02日 蘋果日報	長實雍雅軒忽然孭巨債要小業主硬食晒? 擁有924個服務式住宅單位的葵涌雍雅軒，有業主批評，屋苑僅9年樓齡，但屋苑財政狀況長期虧損，累積赤字逾450萬元。今年一月屋苑管理公司高衞物業管理公司建議調高管理費6%，企圖要業主「夾錢填氹」，惹來227名業主不滿，開業主委員會反對，惟「高衞」以「抵觸雍雅軒大廈公契」為由，堅持加管理費。有業主決定籌組業主立案法團，本周五舉行成立法團業主大會，冀平衡管理公司權力，解決財赤問題。

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107.  The grounds relied on by the plaintiff are :-

(a)  These pieces of evidence purportedly relate to the plaintiff’s general bad reputation, which is a matter required to be but is not pleaded.

(b)  They are evidence within categories (b) and (c) of the rule in Scott v Sampson and therefore are inadmissible.

(c)  They are not otherwise admissible under Burstein’s case.

(d)  They are in any case scandalous, oppressive and/or embarrassing.

Discussion

108.  As said, the pleading requirement set out in paragraph 80 above is not seriously disputed by the defendants.

109.  In light of my decision above that (a) the incidents pleaded in sub-paragraphs (i), (iv) to (x) of the proposed paragraph 3 of the Amended Defence are inadmissible under the rule of Scott v Sampson, and (b) the incidents pleaded in sub-paragraphs (ii) and (iii) are not inadmissible and leave to amend to introduce them is given, I order that such part of Paragraph 74 relating to sub-paragraphs (i), (iv) to (x), namely the 1^st, 3^rd, 4^th, 6^th to 9^th and 11^th rows of the table in Paragraph 74, be expunged from the witness statements of the defendants.

110.  In the 10^th row of the table in Paragraph 74, a report dated March 2016 in relation to the removal of the plaintiff as the manager in an estate in Cheung Sha Wan is averred to.  However, this incident is not particularized under the proposed amendment to paragraph 3 of the Amended Defence.  It is therefore not pleaded.  I therefore order it to be expunged from Paragraph 74.

111.  Having ordered them be expunged for the above reasons, it would not be necessary for me to consider whether they are scandalous, oppressive and/or embarrassing as the plaintiff complains.

112.  In relation to the contents of the 2^nd and 5^th rows of the table in Paragraph 74, they relate presumably to the incidents particularized in sub-paragraphs (ii) and (iii) of the proposed paragraph 3.  Having carefully considered them, I do not think they are scandalous, oppressive or embarrassing and I decline to expunge them on this ground.

Disposal

113.  In the result I order that the 1^st, 3^rd, 4^th, and 6^th to 11^th rows of the table in Paragraph 74 be expunged from the witness statements of the defendants.

114.  Since the plaintiff is not entirely successful, I make a costs order nisi that the plaintiff is to have 80% of its costs of this summons with certificate for counsel to be summarily assessed.  This costs order nisi will become absolute in the absence of any application by summons to vary within 14 days after this decision is handed down.

115.  For the purpose of summary assessment, in the event the costs orders (the ones at §§104 and 114), or any one of them, become absolute, the plaintiff is to lodge a statement of costs within 14 days then after, the defendants their objection within the next 14 days and the plaintiff its reply, if any, the next 7 days.

116.  I thank counsel’s assistance rendered to the court.

SUMMARY ASSESSMENT OF THE COSTS OF DS’ 1^ST AMENDMENT SUMMONS

117.  The amendment sought was the addition of a proposed paragraph 28A which consisted of one short sentence pleading that the plaintiff has a general bad reputation.  No hearing bundle was necessary.  No written submissions were prepared.  The summons was set down as a 3-minute hearing which actually took about 10 minutes.  The point about lack of particulars is trite and entails no research.

118.  In the circumstances, I summarily assess the plaintiff’s costs at HK$8,000, to be paid by the defendants forthwith.