HCMP 3279/2013
[2020] HKCFI 121
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 3279 OF 2013
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IN THE MATTER of Order 113 of the Rules of the High Court
and
IN THE MATTER of the Properties known as Lot No. 2643RP in D.D.120, Yuen Long, New Territories, Hong Kong
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BETWEEN
TSANG SHU WO 1st Plaintiff
MAN CHEUNG LAM 2nd Plaintiff
and
Person unknown in occupation of Lot No. 2643RP in D.D.120, Yuen Long, New Territories, Hong Kong 1st Defendant
CHEUNG KWAN HO 2nd Defendant
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Before: Hon Anthony Chan J in Court
Date of Hearing: 7 January 2020
Date of Decision: 7 January 2020
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D E C I S I O N
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1. This is the first day of trial. Unfortunately, there is an application by the 2nd Defendant (“Application”) for leave to file and serve a Rejoinder to the Plaintiffs’ Amended Reply to his Re-amended Defence which has to be dealt with first.
2. The Application was filed on 13 December 2019 to be heard on 2 January 2020 with an estimated time of 15 minutes. Unsurprisingly, it was adjourned by consent to the first day of trial.
3. The Application is not supported by any evidence. The proposed Rejoinder introduces 3 points: (i) none of the alleged tenants or sub-tenants had ever entered into possession of, inter alia , the Portion; (ii) the licence relied upon by the 2nd Defendant is one with an equity and irrevocable such that the 2nd Defendant and his family members would be allowed to continue to occupy House 41 erected on the Portion until they desire to move out; and (iii) the Plaintiffs’ right of possession is subject to the irrevocable licence because they had or ought to have prior actual or constructive knowledge of that licence before entering into their respective sub-tenancy (which is denied).
4. The important amendment concerns the alleged licence with an equity. Looking at the pleadings as a whole, it is not necessary for the 2nd Defendant to traverse the Plaintiff’s averment on entering into possession.
5. There are a number of objections to this application. Firstly, the sheer lateness of it. I do not accept the submission that this application arose from the late amendment of the Reply to the Re-amended Defence of the 2nd Defendant. The alleged equity attached to the licence is based on facts which took place in about 1979.
6. I agree with the Plaintiffs that such an averment should be pleaded in the Defence of the 2nd Defendant instead of a Rejoinder: see O.18, r.8(2). It is plainly correct that if the 2nd Defendant relies on an irrevocable licence, he must make that clear in his Defence instead of pleading a bare licence, and later expand on it by way of a Rejoinder when the licence is challenged in the Reply.
7. In a witness statement of the 2nd Defendant’s father dated 21 February 2018, it was alleged (without details) that House 41 was rebuilt in about 1979 with the permission of the managers of the Tso. Thus, the 2nd Defendant could have advanced a case of irrevocable licence well before today.
8. This court must bear in mind that the 2nd Defendant has been legally represented all along. There is no explanation on the lateness of the application apart from the bold assertion that it arose from the amendment to the Reply. Having rejected that assertion, this court is left with little basis on which to exercise its discretion in favour of the amendment at such a late stage.
9. Secondly, the proposed pleading is lacking in particulars in respect of para 4(a) (the identities of the managers who allegedly gave the permission(s)) and 5 (the basis of the alleged actual or constructive knowledge). As regards para 5, it should not be overlooked that it was admitted by the 2nd Defendant that the 1st Plaintiff only found out that he and his family were in occupation of the Portion in about August 2012 (see para 7 of the Re-amended Statement of Claim and para 8 of the Re-amended Defence).
10. Hence, allowing the application may prejudice this trial (see further below).
11. Thirdly, it must be accepted that, if the application is granted, the Plaintiffs should be allowed the opportunity to seek proper particulars, to investigate the assertions and to adduce evidence to contradict them if they see fit. There is no reason to doubt the Plaintiffs’ submission that the investigation of event(s) going back many years cannot be done at short notice.
12. In the premises, allowing the application would inevitably result in an adjournment of this trial. Bearing in mind that this case was commenced in 2013, it has taken 6 years for the trial to take place. Adjourning it would be a very serious prejudice to the Plaintiffs.
13. The 2nd Defendant is legally aided with nil contribution. An award of costs against him for this application would not be meaningful to the Plaintiffs. The prejudice to them therefore is not something which can be compensated with costs.
14. In the premises, this application is declined with costs to the Plaintiffs.
(Anthony Chan)
Judge of the Court of First Instance
High Court
Mr K M Chong, Mr Alvin Chong and Mr Alvin Cheng, instructed by Raymond Chan, Kenneth Yuen & Co, for the Plaintiffs
Mr Ernest Koo, instructed by Simon Wong & Co, for the 2nd Defendant