SUN FOCUS INVESTMENT LTD v. TANG SHING BOR AND ANOTHER

HCA538/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 538 OF 2007

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D E C I S I O N

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1.  This is an application by the defendants for leave to appeal against the judgment of this court dated 22 January 2013 (“Judgment”) by which it was held that a new cause of action advanced by the plaintiff based upon an alleged agreement was, despite the expiry of the relevant limitation period, permissible under O.20, r.5(5) of the Rules of the High Court (“the Rule”).

2.  In this application, Mr Cheuk, who appeared for the defendants, has no quarrel with the approach taken by this court under the Rule – see paras 17 and 18 of the Judgment.  However, with respect, there is an inconsistency between the agreed approach and the analysis advocated on behalf of the defendants.  The analysis advanced is a narrow one based upon a technical analysis of the components of the relevant causes of actions. 

3.  I agree with Mr Ma, who appeared for the plaintiff, that Mr Cheuk’s argument that the similarity between the old cause of action and the new cause of action must cover every component of the old cause of action undermines the very purpose of the Rule.  If that contention were correct, no new cause of action will be permitted, save where as a matter of law the facts alleged give rise to more than one cause of action.  Further, the contention has the effect of stripping the words “or substantially the same facts” from the Rule.  With respect, I agree with the analysis set out in Arta Properties Ltd v Li Fu Yat Tso & Ors, HCA 2741/98 at paras 26-32. 

4.  What lies at the heart of both the old and the new causes of action is whether the JVC (defined in para 4 of the Judgment) was profitable.  Thus, the substance of the plaintiff’s case has not been changed. Mr Cheuk submitted that the plaintiff was required to properly particularise its complaint and, for illustration, it should not be allowed to complain against items C and D in the new cause of action if items A and B were the subject matter of the old cause of action.  I believe that such a restrictive analysis is not consistent with the correct approach.  The court had dealt with this point in paras 20 to 22 of the Judgment.  Further, as noted in para 6 of the Judgment, the plaintiff had little knowledge of the details of the Project (defined in para 4 of the Judgment).  The defendants have expressed no disagreement in this regard.  The lack of knowledge explains the inconsistency in the plaintiff’s pleaded case.

5.  Finally, the defendants have placed considerable reliance upon the facts of Moulin Global Eyecare Holdings Ltd (in liquidation) v Olivia Lee Sin Mei, CACV 155 & 161/12, to illustrate how the law is to be applied.  I do not see that the exercise assists the defendants.  It is clear from that judgment that the new causes of action were based upon “different factual circumstances” – see p 29P-Q, 30F-J and 38G-K.

6.  I am unable to agree that there is a reasonable prospect of success in the intended appeal.  Accordingly, I dismiss this application with costs to the plaintiff.