GOLDEN SCREEN LTD v. VILLAGE CINEMAS AUSTRALIA PTY LTD AND ANOTHER

HCCW 368/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO. 368 OF 2005

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D E C I S I O N

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1.      This is an application by the petitioner for further and better particulars of the amended points of defence of the 1^st respondent.  A number of requests in the summons have been withdrawn by the letter of the petitioner’s solicitors yesterday afternoon.

2.      I am going to dismiss the application.  Firstly, it is hopelessly late; secondly, it is without merit.

3.      The amended points of the defence were filed on 21 September 2007, the request for particulars was served on 30 November 2007, the 1^st respondent provided answers to the request on 21 December 2007, and this summons was issued on 31 December 2007.  The trial of petition is to commence 2 days from today.  It is set down for 15 days.  The petition was amended 3 times, points of pleadings have been ordered and filed.  The amended points of reply were served on 22 October 2007.  Many rounds of evidence have been filed in this case, the documents disclosed took up 14 volumes.  Leading counsel of both parties have served lengthy and comprehensive opening submissions.

4.      Given that background, I would be sceptical if any party says he does not know or understand any aspect of the case of the other side.  And with pleadings amended and re-amended and numerous rounds of evidence filed, the parties would be bound by the affidavits served.  Their hands are tied, they would not be allowed to depart from the pleadings or the evidence, and there should be no surprise to anyone at all.  Last but not least, the necessary discovery of documents has been completed.  In these circumstances, I would have thought that further and better particulars of pleadings would hardly be necessary.

5.      No good reason has been given why the request for particulars was not made before 30 November 2007, when the petitioner knew of the trial dates in January 2008.  The application was made far too late.  Everyone’s time would be better spent in preparing for the trial than in engaging in this application, which is a pointless distraction.

6.      On the ground of delay alone, I would have dismissed the application.

7.      I would say a few words on the merits.

8.      The petitioner says the particulars should be provided to enable the petitioner to know the 1^st respondent’s basis for its assertion to “management control” and what “management control” is to encompass.  The 1^st respondent’s alleged “management control” is the subject of comment in the opening submission of the petitioner’s counsel.

9.      On a fair reading of the amended points of defence, I do not consider there should be difficulty in understanding the 1^st respondent’s case for assertion to management control.  It is pleaded in the amended points of defence that from 1992 to 2000, the joint venture was operated strictly in accordance with 1988 written agreement, and that this was replaced by the shareholders’ agreement in 2000 and that the company and its principal subsidiary are to be managed strictly in accordance with this shareholders’ agreement.  How the agreements should be interpreted, in the relevant factual matrix, would be a matter for submission at the trial.  It is not the function of the particulars to address matters which are to be dealt with and have been dealt with in submissions.

10.      The other broad matter the petitioner says it should have particulars of is to enable the petitioner to understand the basis on which the 1^st respondent would argue for an order for the 1^st respondent to purchase the petitioner’s shares in the company.  I cannot see how the request for particulars would assist in such understanding.  In any event, the 1^st respondent would be confined to the evidence it has filed.  No useful purpose would be served by ordering particulars in that regard.

11.      It seems to me that of the requests still pursued by the petitioner, a large number of them relate to assertions or averments which the 1^st respondent has simply not made in the pleading.  These are requests no. 6, 14, 25, 29, 33 and 36.  As for the requests relating to Mr Tan’s authority in respect of various complaints made by the petitioner, these are matters that have been covered in the evidence filed by the 1^st respondent and in the opening submission of the 1^st respondent’s counsel.

12.      For the above reasons, and in the exercise of my discretion, I dismiss the application for further and better particulars.

13.      I order costs of the application to the 1^st respondent in any event.