SIT SAU MING v. LEUNG MAY CHUN, ALISON ALIANCE formerly known as SHAM MAY CHUNG

DCCJ 4453/2008

[2019] HKDC 637

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4453 OF 2008

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DECISION

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1.  This decision follows my Reasons for Decision in this action dated 29 March 2019 (“the Decision”).

2.  In the Decision, I granted leave to the defendant to amend her Amended Defence and gave directions for the filing of the amended pleadings.  Subsequently, the defendant filed her Re-Amended Defence and Counterclaim on 1 April 2019 (“RAD&CC”), and the plaintiff filed his Amended Reply and Defence to Counterclaim on 10 April 2019 (“AR&DCC”).

3.  In their letter dated 29 April 2019, the defendant’s solicitors complained that the AR&DCC contained new averments which were not consequential to the defendant’s amendments in the RAD&CC.  The plaintiff’s solicitors conceded in their reply dated 30 April 2019 that: “we agree §§12A to 12E and §§16A to 16C are not consequential and technically ‘new’, they were based entirely on your client’s evidence at the 1^st trial (see Transcript pp 113-116), and submissions on their effect were made to the trial judge at the 1^st trial.”  Nothing further turned on the new averments. 

4.  On 3 May 2019, the defendant lodged a comprehensivedraft supplemental witness statement (being 梁美春的第二份證人補充陳述書) for my perusal in pursuance of para 15(3) of the Decision.  By their letter dated 6 May 2019, the plaintiff’s solicitors confirmed that they had no objection to the draft but indicated that: “our client needs to reply and seeks leave to file and serve her 2^nd supplemental witness statement (in response) within 14 days thereafter.” 

5.  As there is no objection, I grant leave to the defendant to file and serve 梁美春的第二份證人補充陳述書 within 7 days from the date hereof.

6.  It is not immediately apparent why the plaintiff needs to file further evidence and no draft is attached to their letter.  As with the defendant’s previous and similar application (see para 13 of the Decision), I am not inclined to grant blanket leave especially at this late stage of the proceeding (the trial is due to start on 26 August 2019).  It is for the plaintiff to procure the necessary consent from the defendant or apply for leave when they have a draft in hand.

7.  Turning to the defendant’s application for further and better particulars of the ASOC (see para 3(3) of the Decision), I have now considered the plaintiff’s submissions dated 29 April 2019 and the defendant’s submissions dated 3 May 2019 and will render my decision below. 

8.  In gist, the plaintiff objects to provide the particulars requested “as they were unnecessary”.  Mr Chain for the plaintiff submits that: “Sufficient particulars can be discerned from the evidence (both witness statements and evidence in Court) of the Plaintiff and Tsang Ling Wah Gordon (‘GT’) given at the first trial”.  He identifies, with respect to each request, the relevant references in the plaintiff’s witness’s statement, GT’s witness statement and the transcript of the first trial in his written submissions.

9.  The defendant’s application is said to be based on Order 18, r 12, which materially provides that:-

“(3) The Court may order a party to serve on any other party particulars of any claim … and the order may be made on such terms as the Court thinks fit.

(3A) The Court may make an order under paragraph (3) upon the application of a party or of its own motion.

(3B) No order shall be made under paragraph (3) unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.”

10.  Paragraph (3B) was recently added as a result of the Civil Justice Reform.  It highlights the emphasis on procedural economy, proportionality and cost-effectiveness in the post-Civil Justice Reform culture that discourages interlocutory skirmishes over further and better particulars unless there is a genuine need to clarify the opposite party’s case to ensure fairness and to avoid cost-wasting.  See para 18/12/66 of Hong Kong Civil Procedure 2019 at p 474.

11.  Where application is made by the parties themselves, it is for the party applying for the order to satisfy the court that the order is necessary either for disposing fairly of the cause or matter, or for saving costs.  It is not enough for the applicant merely to show that the particulars requested are “relevant”; for “relevance” is not the test proscribed.  Paragraph (3B) provides for an exhaustive and conclusive definition of what can be (and only those can be) considered by the court to be “necessary” (namely, only for disposing fairly of the cause or matter or for saving costs).  See para 18/12/66 of Hong Kong Civil Procedure 2019 at p 475.

12.  In para 18/12/1 of Hong Kong Civil Procedure 2019, it is said that the functions of properly particularized pleadings are (quoting from Atieselskabet Dansk Skibsfinansiering v Wheelock Marden & Co Ltd [1994] HKC 264 at 269E-270E per Bokhary JA):-

(1)   to inform the other side of the nature of the case that they have to meet as distinguished from the mode in which that case is to be proved;

(2)   to prevent the other side from being taken by surprise at the trial;

(3)   to enable the other side to know with what evidence they ought to be prepared and to prepare for trial;

(4)   to limit the generality of the pleadings, the claim and the evidence;

(5)   to limit and define the issues to be tried, and as to which discovery is required;

(6)   to tie the hands of the party so that he cannot without leave go into any matters not included (although if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleading).

13.  In my view, the defendant’s requests serve no legitimate pleading purpose.  The plaintiff’s pleaded case is sufficiently clear and may be summarized as follows:-

(a)   The defendant is the owner of the subject car parking spaces. (para 1 of the ASOC)

(b)   By a sale and purchase agreement dated 2 November 2007, the defendant agreed to sell and the plaintiff agreed to purchase the said car parking spaces at $660,000.  Completion was agreed to be on or before 2 January 2008 at the office of Gary Mak, Dennis Wong & Chang (“MWC”), the solicitors acting for both parties in the transaction. (para 4-7)

(c)   Pursuant to the agreement, the plaintiff, on divers dates, paid $200,000 and $120,000 to the defendant, and paid $180,000 and $160,000 to MWC. (paras 8 & 15)

(d)   In the course of checking the defendant’s title, MWC discovered four “title defect/liability” (identified in paras 2(a), 2(b), 2(c) and 3) and “it was the bona fide opinion of MWC that the Defendant was unable to complete the sale and purchase in terms of the sale and purchase agreement on or before 2.1.08 by conveying a good title to the said car parking spaces to the Plaintiff.” (paras 9-10)

(e)   “Upon discovery of the defects referred to in Paragraphs 2(a) and 3 by the end of December 2007, MWC advised the Defendant to seek the service of another firm of solicitors for the purpose of completing the sale and purchase.  On or about 1.1.08, MWC informed the Defendant that the completion date has to be postponed to 9.1.08 due to the title problems.” (para 16)

(f)   “On 2.1.08 at the suggestion of MWC, the Plaintiff and the Defendant agreed to postpone the contractual completion date of the sale and purchase agreement from 2.1.08 to 9.1.08 so as would enable MWC and the Defendant to take steps to rectify all defects in her title.” (para 11)

(g)   Between 2 and 9 January 2008, (i) the defendant took steps to deal with the defect identified in para 3; (ii) the plaintiff executed a waiver in relation to the defects identified in paras 2(a) and (b); and (iii) MWC took steps to deal with the defect identified in para 2(c). (paras 12-14)

(h)   Despite “repeated demands, including a letter of 20.5.08 from the Plaintiff’s solicitors”, the defendant has failed or refused to complete. (para 17)

(i)   The plaintiff was and still is willing and able to complete the sale and purchase. (para 19)

(j)   The plaintiff is claiming specific performance of the agreement in this action.  Alternatively, the plaintiff seeks damages in lieu of specific performance or repayment of $320,000 by way of restitution. (the prayers)

14.  As Lord Woolf remarked in McPhilemy v Times Newspapers Ltd & Ors [1999] 3 All ER 775 at 792-793: “The need for extensive pleadings including particulars should be reduced by the requirement that witness statements are now exchanged. … after disclosure and the exchange of witness statements, pleadings frequently become of only historic interest. … Unless there is some obvious purpose to be served by fighting over the precise terms of a pleading, contests over their terms are to be discouraged.”  In the circumstances of this case, the defendant may turn to the witness statements and the evidence at the first trial to gain a better understanding of the plaintiff’s case. 

15.  Turing to the individual requests, Request 1 relates to the pleading in para 9(b) of the ASOC that “the fact and matters referred to in Paragraphs 2(a) and (b) … were only discovered [by MWC] by end of December 2007”.  The plaintiff is asked to state (i) “precisely on what day of December 2007 those fact and matters were discovered”; and (ii) “the circumstances under which those fact and matters were discovered”.

16.  Mr Chain has pointed to GT’s witness statement (at paras 31-33) and the transcript (at 47J-Q & 48C-49D) in answer to the request.  Mr Hung for the defendant maintains that those references all refer to “investigation done … after (not even on) 31^st December 2008.  P has hitherto made no amendment to the pleading on ‘end of December’ (see §9 ASOC).  The pleading is different from P’s stance taken now.”

17.  If Mr Hung is right, then the plaintiff’s pleaded case may be at variance with the evidence.  Be that as it may, it is not for the defendant to tidy up loose ends for the plaintiff.  In my view, the request is not necessary for disposing fairly of the cause or matter, or for saving costs.

18.  In Request 2A, the plaintiff is asked to state “by whom of MWC, at what time and in what manner the suggestion [to postpone the contractual completion date] was made to the Plaintiff”, “to whom, at what time and in what manner the Plaintiff agreed to the suggestion” and “at the time the Plaintiff agreed to the suggestion, did the Plaintiff knew whether the Defendant had agreed to the suggestion already.  If yes, explain why she knew.”  The set of requests is then replicated in relation to the suggestion made to the defendant.

19.  Mr Hung complains that “D did not even know from the pleading the time of the call and the sequence of the calling by GT to P and D.”

20.  The plaintiff has stated in para 13 of his witness statement that “[o]n 2^nd January 2008, Mr Tsang [ie GT] suggested that completion should be postponed to 9^th January 2008 to have more time to deal with the title defects.  To this suggestion I raised no objection.”  The corresponding evidence of GT is stated at para 37 of his witness statement.  Mr Chain submits that the precise timing of the telephone conversation between GT and the plaintiff etc is simply irrelevant and of no significance, as the defendant’s counsel at the first trial did not bother to ask any question on it.  GT’s evidence in relation to the suggestion made to defendant is at para 39 of his witness statement. 

21.  It is trite that: “… every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim … but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits”: Order 18, rule 7(1).  And it has been said that: “It is an elementary rule in pleading that when a statement of facts is relied on, it is enough to allege it simply, without setting out the subordinate facts which are the means of producing it, or the evidence sustaining the allegation.”: per Lord Dinman CJ in Williams v Wilcox (1838) 8 A&E 314 at 331, quoted in Shun Lin Weaving Factory Ltd v Eva Siu Cheung Yee Wah [1980] 1 HKC 605 at 613.  

22.  In my view, the plaintiff’s case on the suggestion made to the parties and the subsequent agreement to postpone the contractual completion date is sufficiently pleaded, and is supplemented by the witness statements.  What the defendant is after here is evidence, not material facts.  The request is notnecessary either for disposing fairly of the cause or matter or for saving costs.

23.  In para 11 of the ASOC, it is pleaded that the parties agreed to postpone the contractual completion date at the suggestion of MWC “so as would enable MWC and the Defendant to take steps to rectify all defects in her title”.  Mr Hung complains that: “Built in to the pleading of P is there was a good reason for the postponement.  D is entitled to know.”  In Request 2B, the plaintiff is asked to state “what are the steps for MWC to take to rectify defects in title” and “what are the steps for the Defendant to take steps to rectify defects in title”. 

24.  It appears from Mr Hung’s submission that the purpose of this request is to probe into the reasonableness of the plaintiff’s case, viz whether there was a good reason for the postponement.  However, it is generally inappropriate to make requests for further and better particulars with a view to cross-examine the other side or to expose some weakness of the pleaded case of the other side: see para 18/12/66 of Hong Kong Civil Procedure 2019 at p 474.  In any event, the “actual” steps taken by the defendant and MWC respectively have been pleaded in paras 12 and 14.  I am not satisfied that the request is necessary for disposing fairly of the cause or matter or for saving costs.

25.  In Request 3, the plaintiff is asked to state “did MWC take any steps between 2.11.08 and 9.01.08 for the Defendant to rectify defects in title.  If yes, what were the steps taken by MWC for the Defendant.”

26.  In my view, the answer is already contained in paras 12(b) and 14 of the ASOC and Mr Chain has pointed to paras 33-42 of GT’s witness statement as the corresponding evidence.  The request is neither necessary for disposing fairly of the cause or matter nor for saving costs.

27.  In Request 4, the plaintiff is asked to state: (a) “by whom of MWC, at what time and in what manner MWC advised the Defendant [to seek the service of another firm of solicitors]”; and (b) “if it is the case of the Plaintiff that the Defendant had agreed to or not agreed to the advice.  If yes, to whom, at what time and in what manner the Defendant agreed to the advice.”  In para 38 of his written submissions, Mr Hung seems to suggest that the timing of the discovery of the defects as pleaded by the plaintiff is at variance with the evidence.

28.  The answer to part (a) of the request is discernible from paras 34-35 of GT’s witness statement as well as 50Q-51T of the transcript of the first trial.  In relation to part (b) of the request, it is apparent from para 12(b) of the ASOC as well as the above-identified evidence that it is not the plaintiff’s case that the defendant had changed solicitors.  The request is not necessary for disposing fairly of the cause or matter or for saving costs.

29.  In relation to Request 5, Mr Chain has made it clear in his submissions with reference to the transcript (at 51A-C) that para 16 of the ASOC contains a typo, in that the date when MWC informed the defendant that completion had to be postponed should be “2.1.08” (instead of “1.1.08” as pleaded).  This is sufficient to dispose of the “by whom” part of request 5(a) as well as request 5(b).  It appears that Mr Hung is insisting on the remaining parts of request 5(a) (ie at what time and in what manner was the defendant informed) as he maitains that: “All D knows is the general assertion: ‘informed’.”

30.  In my view, sufficient particulars have been pleaded (as clarified).  In any event, GT filed his witness statement herein as a witness for the third party before the third party proceeding was settled and the plaintiff had to subpoena him to attend the first trial.  It is not necessary for disposing fairly of the cause or matter and certainly not costs saving to require the plaintiff to approach GT with a view to provide an answer.

31.  Requests 5(c)-(g) are just a repeat of Requests 2A(f)-(g) and have been dealt with above.

32.  Lastly, despite the pleading in para 17 of the ASOC that there were “repeated demands, including a letter of 20.5.08 from the Plaintiff’s solicitors”, Mr Chain has clarified that apart from the letter dated 20 May 2008 in pp 82-83 of the trial bundle, “[t]he Plaintiff has not referred to (and it is unnecessary) any other demands.”

33.  Mr Hung maintains that it should have been pointed out earlier, see para 43-44 of his written submissions.  There is no cause to order the plaintiff to answer Request 6.

34.  For the above reasons, I dismiss the defendant’s entire application for particulars.

35.  In para 15(5) of the Judgment, I reserved the question of costs of the summons to be dealt with on paper after disposing of the defendant’s remaining applications and directed the parties to file written submissions by 20 May 2019.

36.  Two of the three applications of the defendant have been resolved more or less by agreement of the parties without much argument.  I have now dismissed the remaining application for particulars.  In the premises, I make an order nisi that the defendant do pay the plaintiff one-third of the costs of the summons in any event with the remaining costs to be in the cause with certificate for counsel.  Unless an application has been made by 20 May 2019 to vary the order, it will become absolute.