MAN CHEUNG INTERNATIONAL TRADERS LTD AND ANOTHER v. CLSA LTD

DCCJ6778/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6778 OF 2002

________________________

BETWEEN

________________________

________________________

D E C I S I O N

________________________

1.  Under paragraph 8(iv) of the plaintiffs’ submission, the plaintiff’s counsel argues that there is no doubt that both parties had all along understood the word “sell” in paragraph 10(i) as referring to “shares being sold to buyers”, and not referring to the buyers being able to sell shares.  That simply is not correct.  In the original paragraph 10(i) of the defence, it reads:

“It is admitted that for a short period of time sufficient buyers existed in the NASDAQ market to sell all 3,000 shares at US$75 on 3 November 2000.”

2.  The phrase “shares being sold to buyers” are shares to be sold by “buyers” according to the original context of paragraph 10(i) of the defence, because in the noun clause “that for a short period of time sufficient buyers existed in the NASDAQ market to sell all 3,000 shares”, the phrase “to sell all 3,000 shares” is governed by the subject “buyers”.  You cannot detach this phrase out from the “buyers”, the subject of this noun clause; so it is the “buyers” to sell all 3,000 shares.

3.  That is exactly the opposite of what is submitted under paragraph 8(iv) of the plaintiff’s submission.  If that is the intention and understanding of all the parties in this case, as alleged by the plaintiff, then that is good reason for making the amendment because the original defence under paragraph 10(i) does not reflect the understanding of the parties.  The purpose of amendment is to reflect such an understanding correctly in the pleading.

4.  Under paragraph 9(v) of the plaintiffs’ submission, the plaintiff’s counsel submits that the deletion of the word “all” amounts to a withdrawal of an admission that all of the plaintiffs’ 3,000 shares could have been sold at US$75 on 3 November 2000.  I have dealt with this point in my decision.

5.  I repeat that if the original paragraph 10(i) is nonsensical, then there cannot be any admission of fact.  I specifically dealt with the meaning of withdrawal.  Withdrawal must be a withdrawal of fact.  I make an analysis in my Decision that there cannot be a withdrawal of a piece of fact because that piece of fact as written under paragraph 10(i) could not exist.  The plaintiff’s counsel simply does not deal with that point.

6.  I am not convinced at all, for one moment, by paragraph 9(v).  Under paragraph 10(v), the plaintiff’s counsel submits that this court failed to properly consider the extent of the prejudice to the plaintiffs.  There would be costs as a result of the proposed amendment being allowed.  Again, in my decision, I have already said that it is the onus for the parties to gather proof to support what they allege in their pleading.  If the plaintiffs simply failed to note the nonsensical fact under paragraph 10(i) and failed to prepare for the evidence, then they cannot blame the defendant for causing such a failure, because the defendant is under no duty to help the plaintiffs.  Again, the plaintiffs’ counsel has not dealt with this point.

7.  The whole crux of this application depends on whether there is a real prospect of success in the Court of Appeal if I allow the application.  I cannot see any prospect of success, not to mention a real prospect.  I cannot see any chance of the plaintiffs’ being successful in their argument.  I dismiss this application.

(Submissions on costs)

8.  Costs of this application be to the defendant, to be taxed if not agreed, with certificate for counsel.