LI ROBIN KIT LING v. HOU SOU KING

DCCJ 920/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 920 OF 2004

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JUDGMENT

1.  The plaintiff was the tenant of a residential premises owned by the defendant.  The rent was $40,000 per month for a 2-year period.  His pleaded case was that shortly after he took up the tenancy, major renovation works commenced which severely affected the living conditions there.  He said that he took up the tenancy in reliance on and induced by misrepresentation of agents of the defendant.  He claimed damages he suffered as a result.

2.  The defendant’s pleaded case, as filed on 31^st March 2004, was that there was no misrepresentation.

3.  On 29^th June 2005 the defendant took out the present summons to apply to amend its Defence to include an allegation, to be supported by a valuation expert’s report, that the plaintiff took the tenancy at a rent well below the market rent. 

4.  The general principles for grant of leave in such cases have been canvassed in cases like Cropper v Smith, Tildesley v Harper, and Steward v North Metropolitan Tramways Co. [see 20/8/6 of Hong Kong Civil Procedure 2004].  In the last case, the test propounded was whether the defendants can amend without placing the plaintiff in such a position that he cannot be recouped by an allowance of costs, or otherwise.  I think this is the appropriate test. 

5.  As revealed in the plaintiff’s skeleton submission dated 6^th October 2005, the defendant resisted the summons on the basis that:

The Plaintiff is not confident that he can still locate his witnesses as a period of two years have lapsed since the commencement of this action.  If those witnesses cannot be located, then such injury to the Plaintiff’s case could not be compensated by costs or otherwise.  (at para. 6)

It was not supported by any form of evidence.  Even assuming that it was, the plaintiff is at best raising a possibility of missing witnesses.  In my judgment that is not sufficient.  I therefore grant leave to the defendant to amend as per summons.  Costs of this application shall be to the plaintiff in any event.