OLDHAM, LI & NIE, SOLICITORS (A FIRM) v. MELVIN WAXMAN AND ANOTHER

HCA 263/2023

[2026] HKCFI 2098

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 263 OF 2023

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DECISION

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INTRODUCTION

1.  Before me is 2^nd Defendant’s (“D2’s”) summons filed on 17 September 2025 for striking out Plaintiff’s (“P’s”) Writ of Summons and Statement of Claim dated 20 February 2023 (“SOC”) and Concurrent Writ of Summons dated 28 March 2023 as against 2^nd Defendant (“D2”) on the ground that they disclose no reasonable cause of action, and P’s action against D2 be dismissed with costs to D2, under Order 18 rule 19(1)(a) of the Rules of the High Court (“RHC”) (“D2’s Summons”).

2.  Plaintiff (“P”) filed an amendment summons on 21 October 2025 seeking leave to file and serve its Amended Writ of Summons with the Amended Statement of Claim (“ASOC”) indorsed as per the draft annexed to the summons within 7 days from the date of the order to be made, under Order 20 rules 5(1) and 8(1) of RHC (“P’s Summons”).

3.  This is my Decision.

BACKGROUND

4.  P’s action concerns a claim for outstanding legal fees in the sum of HK$5,636,225.87 (plus interest) incurred by P for legal services rendered to D1 and D2, as the solicitors for and on behalf of D1 and D2, at the request of D1 and D2 (§3 of SOC).

5.  On 4 July 2012, a retainer letter bearing D1’s signature was signed.

6.  On 22 June 2018, P issued invoice no 1843/18 to D1 for HK$4,959,563.79 (“Invoice 1843”).

7.  On 26 February 2020, P issued invoice no 0492/20 to D1 for HK$627,607.79 (“Invoice 0492”).

8.  Invoice 1843 was partially settled in sums of HK$326,544.27 and HK$2,300,543, on or around 17 January 2020, and August 2021.

9.  On 5 December 2022, P issued invoice no GDO/30915 to D1 for HK$3,187,909.24 (“Invoice 30915”) (collectively “Invoices”).

10.  On 20 February 2023, P issued its specially endorsed Writ of Summons (enclosing the SOC).

11.  On 1 March 2023, P applied ex parte for leave to issue its concurrent Writ of Summons and serve it on D1 and D2 out of the jurisdiction, pursuant to Order 11 rules 1(1)(d)(iii) of RHC: claim is brought to enforce, rescind, dissolve, annul, or affect a contract, or for breach of contract, which is governed by Hong Kong law. The application was granted on 8 March 2023.

12.  The Concurrent Writ of Summons was issued on 28 March 2023. 

13.  On 29 June 2023, as no notice of intention to defend was given by D1, final judgment against D1 was obtained.

14.  On 21 August 2023, P applied for substituted service of the Concurrent Writ issued on 28 March 2023 and the Order granting P leave to serve out (“Documents”).

15.  On 30 August 2023, Master D. To ordered for substituted service of the Documents via electronic mail. 

16.  On 9 October 2023, D2 filed his Acknowledgement of Service. 

17.  D2 filed his Defence on 19 December 2023.  D2’s Defence denies liability on the ground that he did not agree to engage P as his solicitors:

(a)     P did not issue any of the Invoices to D2;

(b)     P did not deliver any of the Invoices to D2;

(c)     P did not render any professional services to D2;

(d)     P did not request D2 to settle any of the Invoices; and

(e)     D2 did not settle any part of the Invoices

(§§6.1 to 6.5 of Defence).

18.  Further or alternatively, P is not entitled to claim against D2 the full sum allegedly outstanding under the Invoices, as they are unreasonable and excessive as regards both the amounts charged and the items for which such charges are claimed (§7.1 of Defence).

19.  D2 also relies on a limitation defence pursuant to section 4(1)(a) of the Limitation Ordinance (Cap 347) in respect of sums allegedly due from D2 for professional services rendered, work done and disbursements made by P before 20 February 2017 (§7.2 of Defence).

20.  On 16 February 2024, P filed its Reply to the Defence of the D2.  According to P, D2 agreed to engage P by way of the terms of an offer and/or the Invoices, and/or agreed by conduct:

(a)     D2 is the son of D1;

(b)     Under the instructions of D2, jointly with D1, legal advice was sought for and actions were brought against third parties, inter alia under HCA 1972/2021 and its appeal CACV 157/2014.  These actions arose out of a shareholder’s dispute concerning the JV business between D1 and D2, with a Mr Li Fei Yu;

(c)     P also assisted D1 and D2 to discover the misappropriation of funds by Mr Li Fei Yu and upon instructions from D1 and D2 commenced the action under HCA 1973/2012;

(d)     By the nature of the matter, the relationship between D1 and D2, and D2’s beneficial ownership to the shares, it was understood and agreed by the parties that D1 and D2 would jointly engage P for advice;

(e)     Upon this agreement, D1 and D2 were provided with the terms of engagement specified in the retainer letter dated 26 June 2012 (“Retainer Letter”).  The Retainer Letter was explained to D2 in a conference with D1 and D2 on or around 4 July 2012, and confirmed by D1’s signature;

(f)     At all material times, D2 through his requests for legal advice and P’s provision of legal advice, confirmed his agreement to the Retainer Letter.  Pursuant to the Retainer Letter, and in reliance to D1 and D2s’ mutual agreement to engage P, P conducted legal work following D1 and D2s’ express instructions to it by means of (a) telephone calls; (b) emails; and (c) physical conferences.  Throughout D2’s engagement with P, he never denied his engagement or sought for P’s agreement to exclude himself from the Retainer Letter;

(g)     D2’s instructions include acquiring legal representation and advice, requesting reports on the matter and arrangement for settlement of invoices, which were consistent to his intention to contract with P;

(h)     Regarding the dispute against Mr Li Fei Yu, D1 and D2 jointly gave instructions to P and D2 expressly and/or impliedly represented to P and authorised D1 to act in the authority of, and on behalf of himself (“Representation”).  P therefore proceeded with D1 and D2s’ instructions under the Representation and the subsequent Retainer Letter that D2 would be jointly liable with D1 for P’s work on the matter.  P relies on the doctrine of estoppel by convention; and

(i)     Further or alternatively, if D2 made the Representation without genuine attempt to pay P’s legal costs, it is averred that D2 made the Representation to induce and defraud P into providing legal services, thereby committing fraud and fraudulent misrepresentation. 

(§§2.1 to 2.9 of Reply).

21.  By the terms of engagement of the Retainer Letter, P agreed to provide, and D1 agreed to purchase legal services.  By the terms of engagement of the Retainer Letter, it is implied that the same terms of engagement of the Retainer Letter have been offered to D2, jointly with D1, in relation to the same matter. ie a commercial dispute (§4 of Reply).

22.  P also relies on section 23 of the Limitation Ordinance, Cap. 347 in which the right of action to recover debt shall be deemed to have accrued on and not before the date of the last payment in settlement of the Invoices, ie by August 2021 (§6.4 of Reply).

23.  D2 filed a Witness Statement dated 3 February 2025 (“D2’s Witness Statement”). 

24.  On 17 September 2025, D2’s Summons was filed.  In compliance with Practice Direction 19.1 paragraph 5, Messrs Anthony Siu & Co wrote to Messrs Oldham, Li & Nie to inform them that D2’s Summons was taken out on the broad ground that no contract that would entitle P to the relief against D2 has been pleaded. 

25.  On 10 October 2025, the first call over hearing of D2’s Summons took place. Registrar S. Kwang ordered that, on the basis that P would apply to amend its Statement of Claim dated 20 February 2023 within 7 days, the hearing of D2’s Summons be adjourned for a 2nd call over hearing on 7 November 2025.

26.  On 21 October 2025, P filed P’s Summons for leave to amend its Writ of Summons and SOC.  The ASOC pleads, inter alia, the following:

(a)     It is averred that an agreement of legal services was formed whereby D1 and D2 jointly engaged P on the terms of the Retainer Letter.  D2’s agreement to the terms of the Retainer Letter is to be inferred from his conduct and surrounding circumstances (§2C of ASOC);

(b)     By reason of the nature of the matter, the relationship between D1 and D2, D2’s direct interest in the proceedings in asserting his beneficial interests in the shares, and D1 and D2’s conduct at the first meeting, it was understood and agreed by all parties that D1 and D2 would jointly engage P and be bound by the terms of the Retainer Letter (§2C.5 of ASOC) (“Unwritten Contract”);

(c)     Further and/or alternatively, by D1 and [D2’s] conduct at the first meeting, D2 expressly and/or impliedly represented to P that he authorised D1 to act on his behalf in formalising the engagement and in giving instructions for the legal services (“Representation”).  It is averred that this representation was a continuing one, affirmed and repeated by D2’s subsequent conduct as particularised hereinabove (“Continuing Representation”).  In reliance on D2’s conduct, the Representation, and the Continuing Representation, P proceeded to act for both D1 and D2 and continued to provide legal services and incur costs and disbursements on behalf of both Ds throughout the duration of the engagement (§2D of ASOC);

(d)     Further and/or alternatively, P relies on the doctrine of estoppel by convention.  By reason of the matters pleaded above, a common assumption was established and shared by P and D2 that P was retained by both Ds jointly.  The parties conducted their relationship for years based on this assumption, and it would be unconscionable and unjust to permit D2 to now resile from it (§2E of ASOC);

(e)     Further and/or alternatively, if which is denied, D2 made the Representation without any genuine intention of being bound by the retainer or paying for P’s legal costs, P avers that the Representation was made by D2 fraudulently (§2F of ASOC) (“Fraud Claim”); and

(f)     In reliance on the Retainer Letter and pursuant to the terms of engagement of the Retainer Letter, P agreed to provide and rendered legal services to D1 and D2 at their joint request.  By the terms of engagement of the Retainer Letter, the same terms of engagement of the Retainer Letter have been offered to D2, jointly with D1, in relation to the same matter ie a commercial dispute (§2G of ASOC). 

PRINCIPLES – AMENDMENTS  

27.  It is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made “for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings” (G L Baker Ltd v Medway Building and Supplies Ltd [1958] 1 WLR 1216 , 1231 (Jenkins LJ); Natamon Protpakorn v Citibank NA [2009] 1 HKLRD 455 (CA); Re Hin-Pro International Logistics Ltd [2016] 1 HKLRD 1367): §20/8/6 of Hong Kong Civil Procedure, 2026 (Vol. 1).

28.  Leave is readily granted to amend before trial unless it can be shown that the new claim based on the proposed amendment is bound to fail. While the court is entitled to have regard to the merits of the case, it should only do so when the merits are readily apparent, and are so apparent as not to require prolonged investigation: Natamon Protpakorn v Citibank NA at [25] (per Cheung JA).

29.  The primary aim in the exercise of powers of the court is to secure the just resolution of disputes in accordance with the substantive rights of the parties: RHC Order 1A, rule 2(2).  On an amendment application, the court must have regard to the underlying objectives in RHC Order 1A and balance all relevant factors to decide how its discretion should be exercised if the application is made in circumstances offending one or more of the underlying objectives: Shih Mei Ling formerly known as Shih Mei Ling v Shih Mei Kei [2021] HKCFI 2964, per Recorder Jin Pao SC at [21].  

30.  Absent any real prejudice, an application for amendment, albeit late,  must be decided upon the general principle that a court of law seeks to adjudicate on the real issues and disputes between the parties and,  if possible, technical and procedural rules should not stand in the way of allowing the parties to raise their real claims or defences before the court for adjudication: VSC Building Products Co Ltd v Kono Insurance Ltd, unrep, HCA 947/2005, 9 September 2009, per A Cheung J (as he then was) at [22].

31.  Where prejudice is claimed, the burden is on the party opposing the amendment to show prejudice. There is no injustice to the opposing party if he can be compensated by appropriate orders as to costs: Re Playmates Investments Ltd (supra) at 582H, 584C (Le Pichon J as she then was). 

DISCUSSION

32.  D2 submitted that leave should be refused to add the new claims based on the Retainer Letter and Unwritten Contract (“Contract Claims”[1]) for the following reasons:

(a)     There is undue and unexplained delay;

(b)     The amendments are diametrically inconsistent with P’s earlier stance when it applied to serve out the Writ and SOC;

(c)     It is not shown that the Contract Claims meet the test for service out;

(d)     They do not disclose a reasonable cause of action;

(e)     P’s application for amendment seeks to amend the SOC after default judgment has been entered against D1; and

(f)     Any new claim under the Contract Claims regarding Invoice 1843 is time-barred.

33.  Leave should be refused to add the Fraud Claim for the following reasons:

(a)     Delay in alleging fraud;

(b)     P’s pleas on fraud are irrelevant it would entitle P to recover damages from D2, or rescind the Retainer Letter and Unwritten Contract.  The ASOC seeks neither relief;

(c)     P has not shown the Fraud Claim meets the test for service out;

(d)     P’s application for amendment seeks to amend the SOC after default judgment has been entered against D1; and

(e)     The Fraud Claim is vague, unparticularised, and discloses no reasonable cause of action against D2.

34.  I now proceed to analyse the issues arising out of P’s Summons to amend as per the ASOC.

What are the new causes of action contained in the ASOC?

35.  The claim in the SOC was based on the Invoices for work done and services rendered by P to D1 and D2 as the Solicitors for and on behalf of D1 and D2 at the request of as D1 and D2 (§3 of SOC).  P pleaded in the SOC (§5 of SOC) that it would refer as may be necessary to the Invoices for the full terms, meaning and effect of the Invoices which provided, inter alia, the following:

“Please note that interest will accrue at the rate of 2% per month in the event that this invoice is not settled within 30 days from the date hereof.”

36.  Contractual interest under the Invoices is claimed at the rate of 2% per month (§§6 to 8 of SOC).

37.  Mr Tsang submitted that the Contract Claims and the Fraud Claim in the ASOC are new causes of action.

38.  He characterised the SOC’s references to the Invoices as not giving rise to a written contract / debt claim, but can give rise to a quantum meruit claim not based on a written contract. 

39.  P submitted that the Contract Claims are based on the same debt and/or in the same sum for the same relief, arising from the same facts, and do not introduce any new causes of action in the jurisdictional sense that was not disclosed in the application for leave for service out: §29 of P’s Reply Skeleton Submissions.  

40.  The Retainer Agreement is not pleaded in the SOC, but referred to in the affidavit of Mr Oldham filed in support of its ex parte application for leave to issue the concurrent Writ and serve the same on D1 and D2 out of the jurisdiction pursuant to Order 11 rule (1)(d)(iii) of RHC: the claim is brought, inter alia, to enforce a contract, or to recover damages or obtain other relief in respect of the breach of a contract, being (in either case) a contract which is by its terms, or by implication, governed by Hong Kong law. 

41.  At §3(b) of Mr Oldham’s affidavit, he states that P was instructed by D1 and D2 to act for and on their behalf in relation to proceedings in Hong Kong.  Pursuant to their instructions and the Retainer Letter signed by D1 and D2, P had provided legal services in Hong Kong to D1 and D2.  P’s Invoices in respect of work done by P for and on behalf of D1 and D2 had been issued and delivered to them on or about their dates of issue. 

42.  P subsequently in its Reply admitted that D2 did not formally sign the Retainer Letter with P (§§2 and 2.5 of Reply).  I accept that Mr Oldham deposed to matters that were true to the best of his knowledge, information, and belief.  As part of P’s duty and full and frank disclosure, Mr Oldham informed the Court that the Retainer Letter signed by D1 and D2 formally engaging P for the provision of legal services could no longer be retrieved by P as they were executed back in 2012, more than 10 years ago.  

43.  In my view, I should not refer to Mr Oldham’s affidavit when deciding whether the ASOC discloses a reasonable cause of action.  However, I can refer to it in deciding whether the ASOC has pleaded a new cause of action, as alleged by D2, in considering P’s Summons for amendment.  Mr Tsang also submitted that I should compare the SOC with Mr Oldham’s affidavit submitted in support of the application for service out of the jurisdiction. 

44.  P’s ASOC refers to the Retainer Letter / Agreement and an agreement for legal services was formed whereby D1 and D2 jointly engaged P on the terms of the Retainer Letter.  D2’s agreement to the term of the Retainer Letter is to be inferred from his conduct and surrounding circumstances.  According to P, D2 acknowledged his liability for the Invoices by participating in discussions regarding their settlement.  In particular, D2 gave instructions to his agent and/or staff, including a Mr Martin Xie, who arranged for partial payments towards Invoice 1843. 

45.  P referred me to Berezovsky v Abramovich [2011] 1 WLR 2290 (CA) for the proposition that an amendment that reframes the legal basis of a claim or corrects a misdescription does not constitute a new cause of action if it relies on the same essential facts. 

46.  In Berezovsky v Abramovich, Longmore LJ held (at §§59 and 62-64) that since the bare minimum of essential facts to be abstracted from the claimant’s original pleading in respect of Sibneft also appeared (albeit with some amendments) in the amended pleading, the amended pleading either claimed the same loss as had originally been claimed under a different label, or a different kind of loss caused by the same alleged intimidation, and the reframing of the loss as loss of a contractual or other interest instead of a beneficial interest did not raise a new claim for the purpose of section 35(3) of the 1980 Act; and that, accordingly, the judge had been right to allow all but one of the amendments. 

47.  However, this was not a service out of the jurisdiction case so is of limited assistance.  

48.  In my view, although it has been inelegantly expressed, P pleads a contract claim in the SOC: D1 and D2 were at all material times clients of P (§2 of the SOC), albeit only the Invoices are pleaded and not all the documents constituting the contract between Ds and P such as the Retainer Letter are pleaded.  As noted above, P would refer as may be necessary to the Invoices for the full terms, meaning and effect of the Invoices.  This is consistent with P claiming contractual interest of 2% under the Invoices, and P relying on gateway (1)(d)(iii) of RHC: the claim is brought, inter alia, to enforce a contract, or to recover damages or obtain other relief in respect of the breach of a contract, being (in either case) a contract which is by its terms, or by implication, governed by Hong Kong law. 

49.  It is noted that when pleading to §2 of the SOC, D2 averred that “D2 never signed any retainer or engagement letter with P, or otherwise agreed to engage P as his solicitors.”  D2 referred me to Mr Oldham’s affidavit when pointing out the inconsistency of P’s case as set out in Mr Oldham’s affidavit in respect of the Retainer Letter being signed by both D1 and D2 and the case being now advanced in the ASOC. 

50.  I accept P’s submissions that the Contract Claims are based on the same debt and/or in the same sum for the same relief, arising from the same facts, and do not introduce any new causes of action in the jurisdictional sense that was not disclosed in the application for leave for service out.

51.  I conclude that P’s ASOC Contract Claims are not a new cause of action in considering P’s Summons for amendment.  

52.  However, P’s Fraud Claim is a new cause of action. 

Is affidavit evidence required from P to amend to meet the test for service out?

53.  Mr Tsang submitted that in the ASOC, two new causes of actions have been added: Contract Claims and the Fraud Claim.  However, it has not been shown that the new Contract Claims and Fraud Claims meet the test for service out.  He submitted that the onus is on P to demonstrate that the court would have granted leave independently of the ASOC.

54.  I have ruled above that the Contract Claims are not a new cause of action.  However, the Fraud Claim is a new cause of action.  I now turn to consider the service out issue. 

55.  In Waterhouse v Reid [1938] 1 KB 743, CA, where leave has been granted under Order 11 rule 1 (ee), to serve a writ out of the jurisdiction claiming damages for a tort committed within the jurisdiction (in respect of fraudulent misrepresentation) upon a defendant who is domiciled in Scotland, it was not permissible for the plaintiff subsequently to deliver a statement of claim containing also a claim based upon a contract made within the jurisdiction which was not upon the writ when leave was granted, and in respect of which leave to serve the writ out of the jurisdiction could not have been granted.

56.  I was referred to Beecham Group plc v Norton Healthcare Ltd [1997] FSR 81 regarding the exercise of the court’s discretion when the plaintiff seeks to add an additional cause of action against a foreign party brought into the proceedings by virtue of service out of the jurisdiction.  Jacobs J in Beecham Group plc v Norton Healthcare observed [at 92] that a cause of action can only be added if it is such that the court would, independently of the original claim, grant leave to serve out of the jurisdiction.  For then, if amendment were refused, the plaintiff would nonetheless be able to get leave under Order 11 to serve proceedings for that cause of action. 

57.  Jacobs J in Beecham Group v Norton Healthcare referred [at 92] to Beck v Value Capital Ltd (No. 2) [1975] 1 WLR 6 in which Goulding J observed [at 15] that “[i]t is enough to say that the discretion to allow an amendment under RSC Ord. 20 will not be exercised if an injustice to the opposite party will result, and that it is in general unjust to amend a writ served under RSC Ord 11 by adding something which the court would probably have refused to sanction under RSC Ord. 11.”

58.  In Donohue v Armco Inc and others [2002] 1 All ER 749, Lord Bingham [at §21] cited with approval Holland v Leslie [1894] 2 QB 450, in which the view has prevailed that the court should refuse to allow an amendment of proceedings which would introduce a new cause of action against a foreign defendant in respect of which the court would have refused leave for service out of the jurisdiction.

59.  P submitted that this case is different in that D2 has filed a Defence.  D2 has submitted to the jurisdiction of this Court for the purpose of this action.  As held by Holland v Leslie, once a defendant has appeared, an amendment to the writ should be treated “just as in the case of a writ served within the jurisdiction.”

60.  In Holland v Leslie, which was an appeal from the Divisional Court’s decision of Cave and Collins JJ, it was not a case of introducing a new cause of action by way of amendment.  Lord Esher MR in the Court of Appeal observed the following (at page 451):

“Leave was given for the issue of the writ so indorsed, and service of notice of it out of the jurisdiction; such notice was duly served upon the defendant abroad; and the defendant has in due course appeared in this country. It is argued that, under these circumstances, the writ cannot be amended. Why not? The rules with regard to amendments appear in terms to apply to such a case. It is contended, nevertheless, that there cannot be an amendment, because the writ was for service, and has been served, out of the jurisdiction. But the defendant has now appeared in this country; and I can see no reason why an amendment such as this should not be made, just as in the case of a writ served within the jurisdiction. We were pressed with the possibility that, if such a writ could be amended, it might be amended so as to introduce a cause of action in respect of which leave could not have been originally given for service out of the jurisdiction. That is not the present case. When that case arises, there may be good reason for refusing to allow the amendment.” (my emphasis).

61.  First, in respect of the new cause of action in respect of the Fraud Claim, the problem with P’s Summons to amend is that P did not file any supporting affidavit to satisfy the court that:

(a)     there is a good arguable case that its case comes within one of the gateways;

(b)     there is a serious issue to be tried on the merits of the case; and

(c)     that the Court’s discretion should be exercised in its favour to give leave to serve out.

62.  Accordingly, there is no evidential basis in support of P’s case that leave to serve out would have been granted on the Fraud Claim. 

63.  The commentary at §11/4/39 of Hong Kong Civil Procedure, 2026 (Vol. 1) provides that amendment to add an entirely new cause of action is not permissible where the added cause of action is not one of those in respect of which there is power to allow service out of the jurisdiction (Waterhouse v Reid [1938] 1 KB 743, CA).  Subject to this, the rules as to amendments of writ and statement of claim, with leave, apply in regard to writs for service out of the jurisdiction as in other actions, although an affidavit is required to support the application, see §20/8/4 and (Holland v Leslie [1894] 2 QB 346 at 450; Dickson v Law [1895] 2 Ch 62 ; NV Kwik Hoo Tong v Finlay [1927] AC 604 ; and Indigo Co v Ogilvy [1891] 2 Ch 31 (my emphasis).

64.  The commentary at §20/8/4 of Hong Kong Civil Procedure, 2026 (Vol. 1) further provides that an affidavit is not required (in respect of amendments), as a rule, except in cases where amendment is made to a writ issued for service out of the jurisdiction (Holland v Leslie [1894] 2 QB 346 , 348, 450 ; and O.11 r.4), where an allegation of fraud or a plea of justification in a defamation action is sought to be added, where any delay or special circumstances require explanation (Wong Hing Faat v Hong Kong and Yaumati Ferry Co Ltd [1992] 1 HKC 497), or where the application is made after the expiry of the limitation period (my emphasis).

65.  Ms Yeung referred me to Dickson v Law [1895] 2 Ch 62 in which the plaintiff therein was granted leave to amend the writ for service out to join in new foreign defendant. It was in this context that the absence of an affidavit was raised. The court held that it was a “mere irregularity” that could be waived because the merits were otherwise clear to the court. 

66.  I do not think this case assists P due to the facts.  North J in Dickson v Law (at 65) made those observations based on the following:

“[u]pon the merits, I think that Davidson ought to be a party to the action. I do not recollect now who made the suggestion in the first instance, but it is quite clear that, when the application for leave to serve a third party notice upon Davidson was before me, all parties concurred that the best course would be to add him as a defendant. I am satisfied that in substance the order was right.

Amendments to the writ had already been made and served on the defendant. If my attention had been directed to the point when I made the order, I should have required such an affidavit to be made, I do not think I am bound by reason of its absence now to set aside the service of the writ.” (my emphasis).

67.  I was referred to NV Kwik Hoo Tong v Finlay [1927] AC 604 and Indigo Co v Ogilvy [1891] 2 Ch 31.  I did not find these cases to be of assistance as they were not directly on point. 

68.  Ms Yeung also referred me to Anna Dorothea Erna Lungershausen v Thomas Joseph Dillon, JR (HCMP 1751/2002, 19 October 2005), in which DHCJ Muttrie observed at §32:

“[i]f proceedings are served out, and the plaintiff later seeks to bring in by amendment another cause of action which could also be the subject of leave to serve out, then it seems that the amendment is permissible, so long as no injustice to the opposite party will result.”

69.  However, that case is not directly on point.  It did not concern a case in which amendments were sought to add another cause of action which was not contained in the writ when leave for service out of the jurisdiction was granted, and no supporting affidavit had been provided for the new cause of action.  

70.  Second, when D2 submitted to the jurisdiction of this Court, it submitted to the previous claims in the SOC and not in respect of the new causes of action.  In Beecham v Norton Healthcare, although the defendant accepted service and submitted to jurisdiction of the court for the patent claims, it did not do so for the two new causes of action of breach of confidence and interference with goods / property claim which the plaintiffs had sought leave to amend the writ and statement of claim, for which leave to serve out of the jurisdiction had not been given. 

71.  Where jurisdiction over a foreign defendant has been by way of submission to the jurisdiction, the defendant will not necessarily be taken to have submitted in respect of claims subsequently added by amendment and fresh leave may be required: Lakshmi v Hadley [2018] SGHC 87, [37]: §11/4/39 of Hong Kong Civil Procedure, 2026 (Vol. 1).

72.  Ms Yeung referred me to Astro Exito Navegacion SA v WT Hsu [1984] 1 Lloyd’s Rep 266 (CA) and Murthy and Another v Sivajothi and Others [1999] 1 WLR 467 (CA) (at 477- 478).  She submitted that extensive evidence and witness statements had already been exchanged on the matters pleaded in the Reply. She submitted that D2 is estopped from denying submission to jurisdiction in respect of the alleged “new” claim (which is denied) simply because the matters pleaded in Reply are now raised in the ASOC. 

73.  Ms Yeung further submitted that the parties had exchanged witness statements and conducted discovery, and D2 had failed to apply to strike out the Reply which contained the points now in the ASOC.  Ms Yeung submitted that D2 responded to matters raised in the Reply in D2’sWitness Statement.  Accordingly, D2 had engaged in the merits of the dispute and this was inconsistent with D2’s challenge on jurisdiction.  There was no express reservation of rights. 

74.  By way of preliminary observation, I do not think I am entitled to refer to D2’s Witness Statement to decide on the application to amend.  The witness statement of a witness is not by itself evidence but its status is merely that of intended evidence which the witness may be asked to give: Blue v Ashley & The Times Newspapers Limited [2017] EWHC 1553 (Comm), per Leggatt J (at §13 and 14).  A witness statement is not proper evidence before the court until the maker of the statement verifies on oath during examination-in-chief at trial: Order 38 rule 2A(6) of RHC; Hong Kong Civil Procedure 2026 (Vol.1) at §38/2A/13.

75.  The cases relied on above by P can be distinguished. 

76.  In Astro, the English Court of Appeal ruled that the application by the appellant for a stay of proceedings was not an application under Order 12 rule 8(1) (disputing the jurisdiction of the court) and shall be treated as a submission by the defendant to the jurisdiction of the court and for an order striking out a paragraph indorsed on the writ.  These steps in the proceedings amount to a recognition of the court’s jurisdiction. 

77.  That was in respect of a claim that had been served on the defendant and the defendant engaged on the merits.  In this case, the ASOC has not been served and D2 has taken jurisdiction objections as it is his case that there should not be leave to make the claims as amended, as well as taking issues on other points. 

78.  In Murthy, the English Court of Appeal ruled that when a party has submitted to the jurisdiction of the foreign court in respect of a claim properly brought against him in accordance with that court’s procedures would be considered to have submitted to its jurisdiction in an action brought against him by a party to the original claim, either where the subsequent action concerned the same subject matter as the original claim, for example, an action for contribution or indemnity, or where it was connected with the original claim.

79.  I am of the view that D2 cannot submit to jurisdiction regarding the claims contained in the ASOC even if it engaged with the Reply. 

80.  First, D2 can only submit to the jurisdiction of the Hong Kong courts of claims actually served on him which were contained in the SOC.  It has not submitted to the jurisdiction of the claims in the ASOC which have not been served.  This is also consistent with Beecham v Norton Healthcare at [92] and Kayden Ltd v SFC (2010) 13 HKCFAR 696 at §§35 and 36 per Ribeiro PJ, referring to Parker v Schuller (1901) 17 TLR 299 at 300, in which the Court of Appeal refused to entertain the new basis for establishing jurisdiction: “I am not going to say whether the argument is good or bad. It is enough in the present case to say that this was not the cause of action endorsed on the writ of summons, nor the cause of action alleged in the affidavit upon which leave to issue the writ and to serve notice thereof out of the jurisdiction was granted” per Smith LJ at page 300.

81.  Parker v Schuller was applied in Hong Kong by the Court of Appeal in The Owners of Cargo Lately Laden on Board Ship “Artemis” v Artemis Transportation Corp (The Artemis) [1983] HKLR 364 at §§44 to 46 per Barker, JA. 

82.  Second, I accept Mr Tsang’s submissions that it is the SOC that states the causes of action: Schindler Lifts (Hong Kong) Ltd v Nikko Services Ltd (HCMP 270/2014, 20.5.2014) §§11-12 (Kwan JA). A reply responds to the defence and the plaintiff cannot supplement its statement of claim by including in its reply matters which ought to have been included in the statement of claim: Nirumalan K Pillay v A Balakrishnan [1997] 1 SLR 322.  Thus, it is not appropriate to raise in the reply a new cause of action (see Hong Kong Civil Procedure 2026 (Vol. 1) at §18/3/2). A plaintiff who wishes to pursue an additional or alternative cause of action should do so by amending the statement of claim: Magic Score Limited v The Hong Kong and Shanghai Banking Corporation Limited (HCA 11077/1994, 23.6.2006) at §20 per MH Lam J.

83.  As Ms Yeung recognised at §14 in P’s Reply Skeleton Submissions, the amendments in the ASOC merely move the existing pleas into their proper house.

84.  Third, upon examination of the ASOC and the Reply, there are aspects that are different.  For example, the Fraud Claim as pleaded in the ASOC at §§2D and 2F, compared to §§2.8 and 2.9 of the Reply, and the Contractual Claims as pleaded in the ASOC at §§2 to 2.7 of the Reply, compared to §§2A to 2C7 of the ASOC. 

85.  In conclusion, the Fraud Claim is a new cause of action.  The Fraud Claim is a serious allegation against D2.  An affidavit is required to support the application to amend in the ASOC to meet the test for service out.  Different (and potentially multiple) gateways apply.  I decline to exercise my discretion that the Fraud Claim would have satisfied the requirements of service out of the jurisdiction in the absence of affidavit evidence.  The amendment to add the Fraud Claim is not granted in the absence of affidavit evidence.

Does the default judgment against D1 prevent the amendments?

86.  D2 submitted that P’s application, which seeks to amend the SOC after default judgment has been entered against D1, is impermissible. Allowing the amendment essentially involves entering judgment against D1 based on an ASOC he was never served, and which he never admitted to (not even implicitly): Tjin Joen Joe Andy Tsjoe Kong v Oakwise Value Fund Spc & (Garnishee) [2025] HKCFI 1281 per DHCJ KC Chan at §§115-119; Hong Kong Civil Procedure 2026 (Vol. 1) at §13/0/10 which referred to Lam Chi Fat v Liberty International Insurance [2002] 3 HKLRD 480  per Ma J, as he then was at §27; Bluesun Capital Ltd v Tewoo Group Finance No 3 Ltd [2021] HKCFI 2040 per Recorder Manzoni SC at §29. 

87.  This argument is rejected.  The cases above can be distinguished. 

88.  In both Tjin Joen Joe Andy Tsjoe Kong and Lam Chi Fat, only one defendant was involved. 

89.  In Tjin Joen Joe Andy Tsjoe Kong, D sought to set aside the default judgment based on Ps’ pleading being fundamentally defective.  Ps sought to amend.  It was on that basis that the court refused leave to amend to cure the defects causing the injustice and thereby maintaining the default judgment. 

90.  In Lam Chi Fat, the case concerned an analysis of the statement of claim upon which default judgment had been entered.  It did not concern an amendment to the statement of claim post default judgment. 

91.  In this case, default judgment against D1 had been obtained. D1 did not apply to have it set aside and is out of the picture. P’s Summons to amend the SOC was made only between P and D2.

92.  In Bluesun Capital, it concerned application by the 1st and 2nd defendants to set aside a default judgment granted on the basis that no notice of intention to defend had been given by the 1st and 2nd defendants. The issue was whether the judgment was irregular, due to a relief not pleaded in the statement of claim. Recorder Manzoni SC held that judgment in favour of the plaintiff for US$14.5 million was simply not a relief claimed in the statement of claim.  On that basis, the judgment was irregular.  Although it involved multiple defendants, there was no question of amending the statement of claim on which default judgment was obtained. 

Delay

93.  D2 submitted that the Contract Claims were only pleaded 2 years and 8 months after the issue of the writ, which constitute an undue and unexplained delay. 

94.  The proposed amendments regarding the Contract Claims as contained in the ASOC were all pleaded in the Reply dated 16 February 2024, in response to D2’s Defence dated 19 December 2023.  This denied that D2 was ever a client of P, and D2 never signed any retainer or engagement letter with P, or otherwise agreed to engage P as his solicitors: §3 of Defence.  

95.  In any event, no prejudice has been demonstrated by D2 as a result of the delay. 

Abuse of process

96.  In Mr Oldham’s affidavit filed in support of P’s application for service out of the jurisdiction, it is P’s case that both D1 and D2 signed the Retainer Letter. However, in the ASOC, it is P’s case that only D1 signed the Retainer Letter.

97.  D2 submitted that it is an abuse of process for a party, fully knowing the facts, to take a factual or legal position diametrically opposed to one he took earlier: Chu Yue Bun v Lai Shiu Woon [2021] HKCA 1929 per Kwan VP at §35(2); Chan Chun Chuen v Kao, Lee & Yip (HCA 597/2015, 12.10.2017) per DHCJ A Wong SC at §§30, 78 (my emphasis). 

98.  I do not think this is an abuse of process.  Mr Oldham stated in his affidavit that both D1 and D2 signed the Retainer Letter to the best of his knowledge, information, and belief.  Mr Oldham’s affidavit made it clear in the section under full and frank disclosure in that the retainer letters signed by the D1 and D2 formally engaging P for the provision of legal services could no longer be retrieved by P, as they were executed back in 2012, ie. more than ten years ago.

99.  D2 acknowledged mere inconsistency in a party’s case would not per se justify striking out. Nor does it mean a factual pleading will forever and irrevocably bind a party in all subsequent pleadings. The key issue is whether there is abusive conduct by which the party chooses to put forward “diametrically contrary cases on oath”: Chen Hongqing v Asia Cement Corp [2023] HKCFI 2769 per K Yeung J at §§11-12; Chan Chun Chuen at §29, citing Mystar Holdings Ltd v 247037 Alberta Ltd [2009] ABQB 480 per Brooker J at §63.

100.  Although there was an inconsistency in respect of the signing by D2 of the Retainer Letter, even if it is verified by a statement of truth, it is not a ground for refusing an amendment: Shih Mei Ling formerly known as Shih Mei Ling v Shih Mei Kei [2021] HKCFI 2964 at §38.  I do not regard the inconsistency here to be fundamental like in Shih Mei Ling.  The inconsistency was not in respect of the SOC and ASOC but Mr Oldham’s affidavit.  However, he explained that the retainer letters signed by D1 and D2 formally engaging P for the provision of legal services could no longer be retrieved by P, as they were executed back in 2012. 

101.  In considering whether to allow the amendment regarding the Contract Claims, I bear in mind that the primary aim in the exercise of court powers under the RHC is the just resolution of disputes in accordance with the substantive rights of the parties.  I also consider that it is a drastic step to take to prevent a party from advancing a case to trial at the amendment stage, and no adjournment of milestone dates are involved. 

102.  The main prejudice that D2 has suffered as a result of these proceedings so far is that costs have been incurred in defending a different factual case.  D2 should be compensated for that by P in the form of a costs order.

Invoice 1843 time-barred

103.  Regarding Invoice 1843 which was issued on 22 June 2018, D2 submitted that any new claim regarding Invoice 1843 is time-barred. D2 submitted that any contractual claim for the amount under Invoice 1843 would have expired by 21 June 2024 under section 4(1) of the Limitation Ordinance (Cap. 347), before P’s Summons was taken out on 21 October 2025.  Leave to amend should be refused on that basis.

104.  This argument is rejected.  It is P’s case that there was part payment in the sum of HK$3,138,854.95 in August 2021: see Table under Particulars in §4 of the SOC; §6.4 in the Reply.  The parties’ Agreed Chronology states that Invoice 1843 was partially settled in sums of HK$326,544.27 and HK$2,300,543 in or around 17 January 2020 and August 2021.  Section 23(3) of the Limitation Ordinance provides that where a right of action has accrued to recover a debt and the person liable makes any payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the last payment.

PRINCIPLES – STRIKING OUT 

105.  The commentary at §18/19/5 of Hong Kong Civil Procedure 2026 (Vol. 1) provides that a reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered (Drummond-Jackson v British Medical Association [1970] 1 WLR 688 (CA) (Lord Pearson)). So long as the statement of claim or the particulars (Davey v Bentinck [1893] 1 QB 185 ) disclose some cause of action, or raise some question fit to be decided by a judge or jury, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out (Moore v Lawson (1915) 31 TLR 418 (CA); Wenlock v Moloney [1965] 1 WLR 1238 ; Brilliant Star Investment Ltd v NZI International Acceptances Ltd [1989] 1 HKC 375; Karex (Hong Kong) Ltd v Fortune Trade Development Ltd [1999] 3 HKLRD 397; Hong Kong Niiroku Ltd v Kyokuto Securities (Asia) Ltd (HCA 4122/2000, [2002] HKEC 376)).

106.  Where an application to amend a pleading which was sought to be struck out had been made, it would be more expedient and convenient to deal with the striking-out application on the facts as pleaded in the proposed amended pleading. If on that basis, the amended pleading should not be struck out, the application to amend should be allowed and the application to strike out dismissed: §18/19/4(2) of the Hong Kong Civil Procedure 2026 (Vol.1).

107.  O 18 r 19(2) excludes evidence on an application under O 18 r 19(1)(a) that the ASOC discloses no reasonable cause of action. I am not entitled to look at any evidence to assess the extent to which the claim discloses a reasonable cause of action, and I must look only to the ASOC, assuming that all facts set out in the ASOC will be made out.

No reasonable cause of action

108.  I now turn to D2’s Summons for striking out.  D2 submitted that P’s amendments do not disclose a reasonable cause of action against D2 under the Contract Claims:

(a)     They only allege D2’s agreement to the Retainer and Unwritten Contract: §2C of ASOC.  They do not allege P’s agreement: §2G of ASOC.

(b)     In any event, the amendments do not identify the clause that would entitle P to the debt sought in the prayer for relief. They also do not plead P’s performance that entitles P to that debt under the Contract Claims.

109.  I bear in mind that striking out should only be ordered in plain and obvious cases.  In my view, P’s amendments in the ASOC disclose a reasonable cause of action for the Contract Claims:

(a)     P’s agreement is alleged at §2C: “It is averred that an agreement of legal services was formed whereby D1 and D2 jointly engaged P on the terms of a retainer letter dated 26 June 2012.”

(b)     P’s offer based on P’s terms is pleaded at §2C.3: “At the First Meeting, the terms of the Retainer Letter were provided to and explained to both D1 and D2.  Both D1 and D2 read the Retainer Letter and raised no questions or objections to its terms, including to clause 22 which provided for their joint and several liability.”

(c)     D2 being bound by the terms of the Retainer Letter based on a Written and Unwritten Contract is pleaded at §2C.5: “By reason of the nature of the matter, the relationship between D1 and D2, D2’s direct interest in the proceedings in asserting his beneficial interests in the shares, and D1 and D2s’ conduct at the First Meeting, it was understood and agreed by all parties that D1 and D2 would jointly engage P and bound by the terms of the Retainer Letter.”

(d)     P’s performance that entitles P to that debt under the Unwritten Contract /Agreement by Conduct is pleaded at §2C.6: “Pursuant to the Retainer Letter, and in reliance to D1 and D2s’ mutual agreement to engage P, P conducted legal work following D1 and D2s’ express instructions...” Further, §3 of the SOC also pleads “P’s claim is for the sum of HK$5,636,225.87 together with interest thereon at 2% per month as set out in the invoices for work done and services rendered by P to D1 and D2 as the Solicitors for and on behalf of D1 and D2 at the request of D1 and D2 as set out below.” (emphasis added).  Also in §2G: “In reliance on the Agreement and pursuant to the terms of [engagement] of the Retainer Letter pleaded above, P agreed to provide and rendered legal services to D1 and D2 at their joint request.”

(e)     Various clauses are pleaded at §2G that would entitle P to the debt sought in the prayer for relief:

(i)     Clause 4 authorises P to submit interim fee bills / the Invoices for the value of work done up or disbursement incurred to that date.

(ii)     Clause 7 requires D1 and D2 to settle the bill / the Invoices within 30 days, with 2% interest rates per month.

(iii)     The Invoice is also pleaded at §5: “Please note that interest will accrue at the rate of 2% per month in the event that this invoice is not settled within 30 days from the date hereof.”

(iv)     Clause 22 sets out the joint and several liability of D1 and D2.

(f)     P was therefore entitled to deliver the Invoices pleaded in section B which D2 is liable to pay.

110.  Regarding the Fraud Claim, I decided above at §85 that the ASOC adds a new cause of action which there is no supporting affidavit to satisfy the court that it meets the test for service out.  I disallowed the amendment.  There is no need for me to analyse whether the Fraud Claim discloses a reasonable cause of action for the purposes of D2’s Summons. 

CONCLUSION

111.  Regarding P’s Summons, I allow the amendments contained in the ASOC, save and except the amendments contained in §2F in respect of the Fraud Claim and the particulars of fraud pleaded at §§2F.1 – 2F.3.

112.  P submitted at §11 of its Skeleton Submissions that to the extent that D2 alleges that P’s plea of estoppel in §2D of ASOC is misconceived, this was not relied on as a standalone cause of action but was pleaded to prevent D2 from denying the existence of a state of affairs, namely, the existence of a contractual relationship, given the shared assumption on which both parties acted for years. P’s primary cause of action remains the Contract Claims.  D2 did not dispute this. 

113.  I accept P’s submissions that the estoppels to the main cause of action are ancillary. They are not, by themselves, standalone causes of action.  I allow the amendments set out in §§2D and 2E of the ASOC. 

114.  D2’s Summons for striking out shall be dismissed. 

DISPOSITION

115.  I formally make an order in terms of P’s Summons, save and except in §1 of P’s Summons, the Amended Writ of Summons with the Amended Statement of Claim shall not contain §§2F and 2F.1 – 2F.3.

116.  The parties did not address me on the costs of the hearing of P’s Summons.  I make an order nisi that the costs of the hearing of P’s Summons, together with the cost of the hearings on 31 October 2025 and 7 November 2025, be costs in the cause. 

117.  D2’s Summons shall be dismissed with costs to be paid by D2 to P, to be summarily assessed.

118.  For the purposes of the summary assessment of costs, I direct that:-

(a)     P do lodge its Statement of Costs within 3 days of the date hereof;

(b)     D do lodge his List of Objections to P’s Statement of Costs within 4 days thereafter; and

(c)     Assessment of costs shall be conducted on the papers.

119.  I thank Ms Yeung and Mr Tsang for their valuable assistance rendered to me on this case.