POWER SECURITIES CO LTD (formerly known as JUN YANG SECURITIES CO LTD) v. BEST YEAR ENTERPRISES LTD

HCA 2851/2017

[2019] HKCFI 1591

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2851 OF 2017

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D E C I S I O N

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1.  This is an application by the Defendant on 22 May 2019 for leave to adduce further evidence in support of its appeal against the summary judgment entered against it by the Master on 3 January 2019. This is not the hearing of the appeal against the summary judgment itself.

2.  However flexible the standard to adopt, I am not satisfied that the evidence sought to be adduced was not available, or would not have been available and could not have been obtained by the Defendant - if representatives of the Defendant had exercised reasonable diligence before the hearing in January 2019.

3.  Even if it was true, that Mr Sin who was the former director and shareholder of the Defendant until March 2018, was unable by virtue of his alleged incapacity by health reasons, to access and review documents between August or September 2018 and the hearing in January 2019, there has been no explanation whatsoever as to why the directors of the Defendant and other representatives of either the Defendant or Mr Sin could not have helped Mr Sin to find and review the relevant records, and to give the instructions to lawyers to prepare the necessary evidence to resist summary judgment.  Despite his eye condition and treatment, it would have been possible for Mr Sin to instruct his assistants and the Defendant’s lawyers to review and locate the public documents and the telephone messages on which he now seeks to rely.  There was ample time to do this between September and November 2018 when the Defendant’s evidence was due.  There was also ample time between November 2018 and January 2019 for the Defendant to apply to the Court either to adjourn the Order 14 hearing, if necessary, or to seek leave to produce the further evidence, upon reasonable endeavors and diligence being made by the Defendant and its representatives and lawyers during this period.

4.  I entirely reject the Defendant’s suggestion that the evidence sought to be adduced now, 6 months after the hearing in January 2019, could not have been obtained with reasonable diligence for use at the hearing.  This is a blatant attempt to have a second bite of the cherry to produce evidence in an attempt to procure a different outcome for the Order 14 application.

5.  Nor am I satisfied that the allegedly new or further evidence now obtained contains material evidence which would probably have an important influence on the outcome of the Order 14 application made by the Plaintiff against the Defendant, on its straightforward claim of the Defendant’s failure to comply with the margin calls upon the occurrence of an event of default under the Margin Agreement.  The claims of alleged conspiracy and price manipulation of the pledged shares had already been raised in the Defence or evidence originally filed in opposition to the application for summary judgment, but were rejected by the Master.  The materials on which the Defendant now seeks to rely go nowhere to establishing that the Plaintiff was a party to the alleged conspiracy, and are irrelevant to the Defence of breach of alleged oral agreement argued before and dismissed by the Master on the basis of there being contradictory evidence.

6.  In my view, the first condition of Ladd v Marshall is not satisfied.

7.  The Defendant has also argued that the second and third conditions of Ladd v Marshall should be satisfied if the further evidence tendered is sufficient, according to the ordinary principles applied on applications for summary judgment, to raise a triable issue.  Just as a defendant cannot get leave to defend by putting forward a case that is all surmise and Micawberism (Lady Anne Tennat v Associated Newspapers Group Ltd [1979] FSR 298), a defendant should not get leave to adduce further evidence to appeal against summary judgment, simply by referring to obscurities and asking the court to surmise from vague suggestions of indirect irregularities. 

8.  For these reasons, I dismiss the application for leave, with costs to be paid by the Defendant to the Plaintiff.