HCA 4713/2001
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
HIGH COURT ACTION NO 4713 OF 2001
________________________
BETWEEN
| | LAM SIK YING,
ADMINISTRATOR FOR THE ESTATE OF LAM TIM ALIAS STAN LAM TIM, DECEASED | Plaintiff
|
| | and
| |
| | LAM SIK SHI
| 1st Defendant
|
| | CHAN CHING KIT KATHERINE | 2nd Defendant |
________________________
| Before: Deputy High Court Judge Marlene Ng in Chambers |
| Date of Hearing : 3 March 2015 |
| Date of Handing Down Decision : 21 September 2015 |
__________________
D E C I S I O N
__________________
I. INTRODUCTION
1. Lam Tin alias Stan Lam Tin (“Deceased”) died intestate on 6 January 1983. The 1st defendant (“D1”) and his 3 siblings were the lawful and natural children of the Deceased and his wife. The plaintiff (“P”) was the son of the Deceased and Madam Wong Kwan Ying (“Madam Wong”). P claimed (and D1 denied) Madam Wong was the concubine of the Deceased. The 2nd defendant (“D2”) was the wife of D1 until their divorce in 1994.
2. The dispute over the status of Madam Wong as well as her/P’s entitlement to the Deceased’s estate (“Estate”) led to protracted litigation (HCA1885/2087), which was eventually resolved by the order of DHCJ Jennings dated 13 April 1992. On 24 March 1999, letters of administration of the Estate (“LA”) were granted to Madam Wong and P. Madam Wong passed away on 7 June 1999, and P was the sole surviving administrator of the Estate.
3. P claimed the Estate comprised inter alia the Deceased’s interests in (a) his sole proprietorship business Stan Company A Tim (“SCAT”), (b) No 6 Sharp Street East, Hong Kong (“Sharp Street Ppty”), (c) 1/F, No 15 Li Kwan Avenue, Hong Kong (“Li Kwan Ppty”), and (d) 4 rental properties being (i) Ground Floor, 29 Pan Hoi Street, Quarry Bay, Hong Kong (“1st Rental Ppty”), (ii) Flat No 8, 19/F, Chung Hing Mansion, 5 Pan Hoi Street, Quarry Bay, Hong Kong (“2nd Rental Ppty”), (iii) Flat No 3, 4/F, Chung Hing Mansion, 5 Pan Hoi Street, Quarry Bay, Hong Kong (“3rd Rental Ppty”), and (iv) Flat No 4, 4/F, Chung Hing Mansion, 5 Pan Hoi Street, Quarry Bay, Hong Kong (“4th Rental Ppty”) (collectively, “Rental Ppties”). The Rental Ppties were sold on 12 January 1989, 5 October 1988, 22 March 1988 and 22 March 1988 for the respective sums of $330,000, $350,000, $195,000 and $179,500 (collectively, “Sale Prices”).
4. P claimed that prior to the grant of the LA, D1/D2 “intermeddled with the Estate and/or committed acts and/or suffered omissions in relation to the Estate without any legal authority, thereby causing substantial loss and damage to the Estate” (my emphasis). The present application was for amendment of (a) P’s Indorsement of Claim (“IoC”) on the Writ of Summons issued on 1 November 2001 (“Writ”) and (b) the later Statement of Claim filed on 24 April 2002 (“SoC”). Since the IoC and SoC were made more than 13-14 years ago, I turn to the archaeology of the present action to put the application in its proper context.
II. PROCEEDINGS
5. On 10 July 2002 and 12 February 2003 respectively, D1 and D2 filed his/her Defence (“D1and D2Defences”). On 23 September 2002 and 17 March 2003, P filed his respective Reply to D1’s Defence and D2’s Defence. On 18 June 2004, the parties filed their respective witness statement as to fact. Thereafter, P twice filed Notice of Intention to Proceed on 12 December 2008 and 15 December 2009 respectively. On 13 January 2010, D1 filed Notice of Intention to Act in Person. On 25 March 2010, P filed a document described as “Particulars of Damage” (“P’s Particulars”) without leave of the court or consent by D1/D2.
6. On 16 July 2010, P applied for an injunction to restrain D1 from dealing with or disposing of his assets up to $32,034,964.80 (including his share of the proceeds of sale of Ground Floor, 4 Sharp Street East, Hong Kong (“G/F 4SSE”)) until judgment or further order. On 12 August 2010 D1’s then solicitors filed their Notice to Act, but on 19 August 2010 D1 filed Notice of Intention to Act in Person. On 14 January 2011, Recorder Yu SC granted an injunction to restrain D1 from dealing with, disposing or removing from Hong Kong his assets up to the value of $2,500,000 including his half share of G/F 4SSE or the net sale proceeds thereof until after trial or further order (“Injunction Order”). On 6 April 2011, D1’s new solicitors filed Notice to Act.
7. G/F 4SSE was eventually sold. On 5 May 2011, P applied by summons to vary the Injunction Order. On 20 May 2011, D1 gave an undertaking that he would not dispose of the sale proceeds up to the value of $33,333,248.69 until the determination of P’s application (“D1’s Undertaking”). On 30 May 2011, D1 applied by summons to discharge the Injunction Order. On 9 February 2012, DHCJ Lok (as he then was) reduced the amount covered by D1’s Undertaking to $16,500,000. On 14 February 2012, D1’s new solicitors filed Notice to Act. On 20 February 2012, DHCJ Lok (as he then was) ordered D1 to pay $10,000,000 into court (which D1 did on 28 February 2012), discharged the Injunction Order, and released D1’s Undertaking revised as aforesaid.
8. On 9 March 2012, D1 applied by summons to strike out P’s claim for want of prosecution and/or abuse of process. On 29 March 2012, Master Ko directed the parties to “take out any and all interlocutory application within 28 days from the date of the disposal [of D1’s/D2’s striking out summonses], such as amendment of pleadings, …… as contemplated in the Questionnaires”. On 13 March 2013, Suffiad J dismissed D1’s summons, but struck out and dismissed P’s claim against D2 for want of prosecution. On 18 April 2013, Suffiad J refused D1 leave to appeal against his order.
9. On 15 January 2014, Registrar KW Lung granted leave for P to set the present action down for the trial with a pre-trial review (“PTR”). On 4 June 2014, D1’s new solicitors filed Notice of Change of Solicitors. The 9-day trial was scheduled to be heard on 3 to 13 March 2015 (“Trial”). When the present action was set down for trial, the pleadings and witness statements had not been amended or updated since 2003/2004. At the PTR on 3 December 2014 (“1st PTR”), this court raised concerns over the parties’ readiness for trial in relation to pleadings, witness evidence and expert evidence, and adjourned the 1st PTR to 21 January 2015 for P and D1 to address those concerns.
10. On 16 January 2015, P filed 2 summonses, the first for retrospective leave to file/serve expert evidence being valuation reports in relation to the market and/or rental values of the Sharp Street, Li Kwan and Rental Ppties previously obtained by P (“1st Summons”), and the second for leave:
(a) for P to withdraw P’s Particulars, and to amend the SoC as per the draft annexed thereto (“1st ASoC Draft”);
(b) for D1 to amend D1’s Defence within 7 days;
(c) for P to amend his Reply (if necessary) within 7 days thereafter;
(d) for P and D1 to file/exchange supplemental witness statements within 10 days (“2nd Summons”).
11. At the adjourned PTR on 21 January 2015 (“2nd PTR”), P’s counsel handed up a draft supplemental witness statement of P (“1st StatementDraft”). D1’s counsel opposed the 1st and 2nd Summonses. I vacated the trial and adjourned (a) the present action for a case management conference (“CMC”) before me on 3 March 2015 (“3/3/15 CMC”), and (b) the 1st and 2nd Summonses to be heard at the 3/3/15 CMC. I further directed P to advise D1 in writing on whether or not the expert surveyors who prepared the valuation reports annexed to the 1st Summons were still available and willing to (i) act as experts for P, (ii) comply with the court’s directions on expert evidence (if any), and (iii) give evidence at trial (if required). Following debate at the 2nd PTR, but without prejudice to P’s and/or D1’s stance in respect of 1st and 2nd Summonses, I also granted leave:
(a) for P, if so advised, to apply within 14 days to amend the reliefs sought in the 1st and/or 2nd Summonses, the 1st ASoC Draft, and the 1st Statement Draft;
(b) for D1, if so advised, to lodge and serve within 14 days draft paragraphs (on matters referred to in paragraph 13 of the written submissions of D1’s counsel dated 14 January 2015) for inclusion in any supplemental witness statement in reply that D1 might wish to serve if the court were to grant leave for P to serve his supplemental witness statement.
12. On 5 February 2015, D1 lodged a summary of the matters drawn from various paragraphs in D2’s witness statement filed on 18 June 2004 that he wished to incorporate in his eventual supplemental witness statement (“D1’s Additional Paragraphs”).
13. On 25 February 2015, Master R Lai granted leave for P to amend the 1st and 2nd Summonses. On the same day, P filed the amended 2nd Summons (“Amended2ndSummons”) for the following orders:
(a) leave for P to withdraw P’s Particulars, and to amend the IoC and SoC as per the draft Amended IoC (“AIoC Draft”) and the draft Amended SoC that replaced the 1st ASoC Draft (“2nd ASoC Draft”);
(b) leave for D1 to amend D1’s Defence within 21 days;
(c) leave for P to amend his Reply (if necessary) within 21 days thereafter;
(d) leave for P to file his supplemental witness statement as per the draft annexed thereto (“2nd StatementDraft”);
(e) leave for D1 to file (and serve) supplemental witness statement if so advised.
14. Also on the same day, P filed the amended 1st Summons (“Amended 1st Summons”) for the following orders:
(a) leave for P to adduce expert reports that P previously obtained on (i) the rental values of the Sharp Street, Li Kwan and Rental Ppties and (ii) the difference in market value of the Rental Ppties between their respective dates of sale and the date of the LA;
(b) leave for P and D1 to file and serve single joint expert valuation report on (i) loss of rental in respect of (1) the Sharp Street Ppty from 7 January 1983[1] to May 2001, (2) the Li Kwan Ppty from 7 January 1983 to December 1989 and (3) the Rental Ppties from 7 January 1983 to 31 March 1999,[2] and (ii) the market value of the Rental Ppties as at 31 March 1999;
(c) alternatively, leave for P and D1 to file and serve sequential expert valuation reports on the expert issues in (b) above with consequential directions for joint without prejudice meeting of such experts.
15. On 16 January, 5 February and 27 February 2015 respectively, P filed the 1st, 2nd and 3rd affirmations of his solicitor Choi Pui Wah (“Choi”) in support of the Amended 1st and 2nd Summonses (“Choi 1st, 2nd and 3rd Aff”). The Amended 1st and 2nd Summonses were returnable before me at the 3/3/15 CMC.
16. At the 3/3/15 CMC, Mr Chan (and Ms Lai with him), counsel for P, and Mr Bell SC (and Mr Yung with him), counsel for D1, agreed it would be appropriate to first deal with the reliefs sought under the Amended 2nd Summons in paragraphs 13(a)-(c) above (“P’s Application”). Should the court grant leave for P to amend the IoC and SoC, leave must also be granted for D1 to consequentially amend the D1 Defence and for P to amend the Reply thereto (if so advised). Since the entire scope of dispute between P and D1 could not be ascertained until closure of this round of amended pleadings, at this stage it would be premature to consider directions (if any) for supplemental witness statements and/or expert evidence. Even if supplemental witness statements were required, P might possibly wish to (a) revise the 2nd Statement Draft in light of disputes between P and D1 to be elicited upon closure of this round of amended pleadings and/or (b) reconsider the outstanding reliefs sought in the Amended 2nd Summons in paragraphs 13(d)-(e) above accordingly. But Mr Chan indicated P had no objection in principle to D1’s proposal to include D1’s Additional Paragraphs in any supplemental witness statement that D1 might eventually file/serve. So, at the 3/3/15 CMC, I adjourned these matters for consideration and, where appropriate, determination at the next CMC with costs reserved.
17. Likewise, at the 3/3/15 CMC, there was general consensus that it would be premature to hear the Amended 1st Summons pending resolution of P’s Application. Should the court grant leave for P to amend the IoC and SoC, P and D1 would not be able to elicit or refine the fullness of the expert issues (if any) for obtaining fresh expert reports before closure of this round of amended pleadings. Hence, Mr Chan and Mr Bell SC agreed (and I so directed) the Amended 2nd Summons be adjourned for consideration and, where appropriate, determination at the next CMC with costs reserved. At the end of this Decision, I will revisit the Amended 1st Summons to assist the parties in their reconsideration of the reliefs sought thereunder for the purpose of the next CMC.
III. LEGAL PRINCIPLES:PLEADINGS
18. I now turn to the legal principles that underlie the interaction among the IoC, SoC and P’s Particulars (collectively, “P’s Pleadings”).
(a) Indorsement of claim
19. Order 6 rule 2(a) of the Rules of the High Court (“RHC”) provides that an indorsement of claim is a “concise statement of the nature of the claim made or the relief or remedy required in the action begun [by the writ]”. How much detail is required of such “concise statement” may vary from case to case.[3] Even though the indorsement as to the “nature of the claim” may sometimes be sufficient (without amendment) to justify a claim pleaded in a later statement of claim,[4] generally a plaintiff in his later statement of claim may not raise any allegation or make any claim for a cause of action “not mentioned” in the writ.[5] In a proper case, a plaintiff may raise such matters by amending the indorsement. Thus, it has been said the indorsement “marks out the permimeter or range of the area within which the plaintiff may express its claim in a formal fashion in the statement of claim whether as originally filed or as sought to be amended”.[6]
20. A “cause of action” may be “mentioned” even if the indorsement does not specify “the sequence of essential facts” which must be pleaded/proved in order to establish that cause of action,[7] so a plaintiff is permitted in his later statement of claim to alter, modify or extend any claim he has already made in the indorsement on the writ without amending it. If the facts necessary to establish the claim in the writ would suffice to establish some other, perhaps narrower, cause of action because they are the same as or include or form part of the facts giving rise to the cause of action “mentioned” in the writ, the plaintiff is entitled to add in the later statement of claim such cause of action without amending the writ, but this does not entitle the plaintiff to completely change the cause of action indorsed on the writ or to introduce an entirely new and additional cause of action.[8]
(b) Statement of claim
21. The central purpose of the statement of claim is to formulate the cause(s) of action against the defendant. A statement of claim must state (a) in summary form the material facts on which the plaintiff relies for his claim,[9] (b) specifically the relief(s) or remedy(ies) which he claims[10] and (c) the legal connection/nexus between the facts relied on and relief/remedy(ies) claimed [11] to enable the defendant to know the case he has to meet.
22. The pleaded facts must be “material”, ie any fact which the party is entitled to prove at trial even though “it may relate only to the quantum of damages or the type of relief claimed”.[12] “Material” means necessary for the purpose of formulating a complete cause of action; and if any one material statement is omitted, the statement of claim is bad. Ordinarily, the material facts to be pleaded are those which existed at the date of the issue of the writ, but occasionally the rights of the parties may be affected by events or circumstances which happen or take place after the issue of the writ.[13] Hence, Order 18 rule 9 of the RHC provides that “…… a party may in any pleading plead any matter which has arisen at any time, whether before or since the issue of the writ”. But this is subject to inter alia “the requirement that the plaintiff may not in his statement of claim raise any allegation or make any claim in respect of a cause of action which is not mentioned in his writ”, and “the plaintiff cannot plead matters which have arisen since the issue of the writ which have the effect of adding a cause of action accruing since that date”.[14] It is important to distinguish between (a) pleading subsequent events that allow the real dispute to be determined based on a cause of action that existed at the time of issue of the writ (which is permitted), and (b) introducing a cause of action that did not exist at the time of issue of the writ but only arose afterwards.[15]
(c) Particulars
23. Order 18 rule 12(1) of the RHC provides that “…… every pleading must contain the necessary particulars of any claim …… or other matter pleaded ……” Particulars are the details of the case set up, and form part of the pleadings. They carry into operation the principle that the litigation, particularly the trial, should be conducted fairly, openly and without surprises, and incidentally to save costs.[16]
24. Voluntary particulars are further and better particulars of a pleading served without request or order. DHCJ Au-Yeung (as she then was) in Christian Emil Toggenburger & ors v Luu, Hung Viet Derrick & ors explained as follows:[17]
“39. The practice of serving voluntary particulars without request is intended to show the readiness of the party concerned to inform the opposite party of the material facts upon which he intends to rely, to narrow the issues, to prevent surprises and to reduce costs: Hong Kong Civil Procedure 2011,para 18/12/65.
40. It is not intended as a device for a party to introduce new particulars to vary its case unilaterally or to introduce a new cause of action: Hong Kong Civil Procedure 2011, para 18/12/64-65.
41. It is also not the function of particulars to take the place of necessary averments in the pleadings nor to state the material facts omitted in order by filling the gaps, to make good an inherently bad pleading: Hong Kong Civil Procedure 2011, para 18/12/1.”
Thus, “voluntary particulars” must not be used unilaterally to amend, add to or vary the case of a party in a way that the court would not sanction.
(d) Pleadings – special damages vs general damages
25. In Bodum AG v Renco Trading Limited, I have discussed the difference between special and general damages in terms of pleadings.[18] The basic test of whether damage is general or special is whether particularity is necessary/useful to warn the defendant of the type of claim and evidence or the specific amounts of claim, which he will be confronted at trial.[19]
26. Special damage is such loss that the law will not presume to be the consequence of the defendant’s act, but it depends in part, at least, on the special circumstances of the particular case.[20] Further, where the precise amount of a particular item of damage has become clear before the trial, either because it has already occurred and so become crystallised or because it can be measured with complete accuracy, this exact loss must be pleaded as special damage.[21] Special damage must always be explicitly claimed on the pleading with all necessary particulars.[22] On a strict view, the plaintiff will not be allowed at trial to give evidence of any special damage which is not claimed explicitly in his pleadings. But even if there is a greater degree of leniency under the modern approach, a claim for special damage will only be allowed to be proved if the existence of such claim is clear from the statement of claim.[23] On the other hand, general damage is such as the law will presume to be the natural and probable consequence of the defendant’s act. It arises by inference of law and may be averred generally.[24]
27. But whether the damage be general or special, if the plaintiff is able to base his claim for damages upon a precise or perhaps estimated calculation, he must plead particulars of the facts which make such a calculation possible. But the level of precision required in pleading a particular head of damage should be determined by the need to provide a fair and sufficient indication of the case that was being brought and that the opposing party had to meet.[25]
28. In Perestrello E Companhia Limitada v United Paint Co Ltd,[26] it was held that although the claim for loss of profits was one for unliquidated damages and not for special damage,[27] the plaintiffs could not, without amending their pleadings, adduce evidence of the alleged loss of profits. At pp 485-486, Lord Donovan said as follows:
“Accordingly, if a plaintiff has suffered damage of a kind which is not the necessary and immediate consequence of the wrongful act, he must warn the defendant in the pleadings that the compensation claimed will extend to this damage, thus showing the defendant the case he has to meet and assisting him in computing a payment into court.
The limits of this requirement are not dictated by any preconceived notions of what is general or special damage but by the circumstances of the particular case. “The question to be decided does not depend on words, but is one of substance” (per Bowen, L.J., in Ratcliffe v. Evans).
The same principle gives rise to a plaintiff’s undoubted obligation to plead and particularise any item of damage which represents out-of-pocket expenses, or loss of earnings, incurred prior to the trial, and which is capable of substantially exact calculation. Such damage is commonly referred to as special damage or special damages but is no more than an example of damage which is “special” in the sense that fairness to the defendant requires that it be pleaded.
The obligation to particularise in this latter case arises not because the nature of the loss is necessarily unusual, but because a plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make calculation possible.” (my emphasis)
29. In Hayward & anor v Pullinger & Partners Ltd,[28] the plaintiffs claimed damages for wrongful dismissal being loss of salary and commission which they would have earned during the period of notice to which they claimed to be entitled if it had been given. It was held that since the damage complained of was special damage, the statement of claim was defective in the absence of “any paragraph specifically alleging damage”. Devlin J further held there was no obligation on the part of the other party to ask for particulars of the special damage, and “the true position is that, unless they are contained in the statement of claim, evidence leading to damage in respect of which damages are claimed cannot technically be relied on at the trial”.[29]
IV. LEGAL PRINCIPLES: LIMITATION OF ACTIONS
30. The Writ was issued in 2001. Thus, the 1st Summons and Amended 1st Summons filed more than 13 years later in 2015 for leave to amend the IoC and SoC triggered considerations as to limitation of actions.
31. The relevant provisions are section 35 of the Limitation Ordinance Cap 347 (“LO”) and Order 20 rule 5 of the RHC. Although the court has a wide discretion in allowing amendments under Order 20 rule 5(1) of the RHC, where the effect of any proposed amendment triggers a limitation point by adding or substituting a “new claim” which is time-barred, Order 20 rule 5(5) of the RHC and section 35(5)-(6) of the LO provide that the court has discretion to allow the amendment if the new cause of action arises from the same or substantially the same facts as an existing cause of action in respect of which relief has already been claimed in the action (“Threshold Requirement”).
32. This raises 3 questions: (a) whether the proposed amendments amount to a new claim in the sense that it is a new cause of action, (b) if so, whether it arises from the same or substantially the same facts as the existing cause of action already pleaded (ie whether it meets the Threshold Requirement), and (c) if the answer to (a) is no or the answer to (b) is yes, whether the proposed amendments should be allowed.
33. If the answer to paragraph 32(b) above is in the negative, a limitation point is normally a matter of right so the court has no residual discretion to exercise to permit a statute-barred claim to be raised.[30] So unless the new cause of action which is statute-barred arises out of the same or substantially the same facts as provided in section 35(6)(a) of the LO and Order 20 rule 5(5) of the RHC, leave must be refused.[31] Indeed, it is an abuse of process to seek to introduce new claims which were time-barred into an existing pleading when sections 35(5)-(6) of the LO are not satisfied.[32]
34. Mr Chan referred me to the approach in Extramoney Ltd & anor v Chan, Lai, Pang & Co (a firm),[33] which was to give leave to amend where there is a triable issue on limitation and to leave such issue to be resolved at trial. Such approach was held to be incorrect by the Court of Appeal in Global Bridge Assets Ltd v Sun Hung Kai Financial Ltd.[34] In Global Bridge Assets Ltd, it was held that leave to amend should not be given if its effect is to deprive the defendant of an accrued limitation defence, which will be lost as a result of the operation of the relation back rule in section 35(1)(b) of the LO, and the correct approach is to refuse leave to amend unless the plaintiff can show the defendant does not have a reasonably arguable case on limitation or the new claim meets the Threshold Requirement.
35. However, if the amendment sought does not bring in any new cause of action or if the new cause of action meets the Threshold Requirement (and hence not statute-barred), it still remains the court’s discretion to decide whether it is just to allow the proposed amendments:
“16. The relevant effect of s.35 of the LO is that where a “new claim” is sought to be made in the course of an action and such claim would otherwise be statute barred, it will be allowable only if it arises out of “the same facts or substantially the same facts” as a cause of action “in respect of which relief has already been claimed” in the proceeding. However, if the new claim would not be statute barred this restriction imposed by s.35 will not apply, and the new claim would be dealt with by a pleading amendment upon the discretionary grant of leave under O.20 r.5 of the Rules of the High Court (Cap.4A, Sub.Leg.) (the Rules). ……”[35]
36. In light of the above, Mr Chan conceded at the 3/3/15 CMC that the question before the court was not whether there was a triable/arguable issue on limitation, but whether P was able to discharge his burden to show there was no new claim or the new claim met the Threshold Requirement. At the 3/3/15 CMC, Mr Chan also accepted that if any of the proposed amendments amounted to a new cause of action that did not meet the Threshold Requirement, it would be statute-barred by now, so it was unnecessary for this court to consider (and neither Mr Chan nor Mr Bell SC addressed on) any of the applicable limitation period(s).[36]
(a) New cause of action
37. Mr Chan accepted that on an application to amend by adding a new claim which would have been time-barred if raised in a new action, the burden is on the plaintiff to persuade the court such claim meets the Threshold Requirement and it is just to allow the amendment. Mr Chan further agreed that alternatively the plaintiff has to show the proposed amendments do not raise any new claim.
38. Under section 35(2) of the LO, a “new claim” means the addition or substitution of “a new cause of action”. “Cause of action” is not defined in the LO, but the classic meaning given by Diplock LJ in Letang v Cooper was: [37]
“A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.”
Recorder Paul Shieh SC in ArtaProperties Limited v Li Fu Yat Tso & ors cited such definition with approval[38] and went on to say as follows:
“21. This is not greatly different from that given by Lord Esher MR in the context of limitation in Coburn v Colledge [1897] 1 QB 702 at 706:- “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court” (see also Paragon Finance v DB Thakerer & Co. at 405d-g per Millett LJ).[39] These definitions focus on the pleading of material facts sufficient to give rise to a claim that is not susceptible to being struck out.
22. However, that does not mean that no material fact could ever be added or amended after the expiry of limitation period. The concept of a “new cause of action” had been explained further by Holroyd Pearce LJ in Robinson v Unicos Property Corp. Ltd [1962] 1 WLR 520 at 525 as meaning “a new claim made on a new basis” (applied in Hong Kong in Red Sea Insurance Ltd. v Bouygues SA & others [1993] 2 HKLR 161 at 167 per Sir Derek Cons VP, a point unaffected by the subsequent appeal to the Privy Council).”
39. In Mushtaq otherwise known as Mahmood Riyasat v Secretary for Justice sued for and on behalf of Director of Immigration,[40] HHJ Leung held that whilst a cause of action could be defined by facts selected at the highest level of abstraction, it does not exist in the abstract. Therefore, reference to no more than a label such as breach of contract or duty will be too high a level of generality in defining a cause of action. Assertion of breach of contract in respect of a contract different from the one pleaded in the original claim gives rise to a new cause of action, albeit also a claim in contract.[41] Likewise, assertion of a different duty, or the same duty as that originally pleaded but with different nature/extent of breach or damage may well give rise to a different cause of action, albeit also a claim in negligence.[42] Further, where the original pleading pleads certain facts but does not make a claim under it, an amendment to claim under it involves a new cause of action.[43] But that said, the question whether a proposed amendment amounts to introduction of a new cause of action must be a matter of impression viewed with a good dose of common sense, and “[it] is dangerous to rely too heavily on precedent”.[44]
(b) Relevant point to assess limitation
40. In Moulin Global Eyecare Holdings Ltd v Olivia Lee Sin Mei, the Court of Final Appeal held that the expiry of an applicable limitation period is to be assessed by looking to the terms of the indorsement on a writ,[45] and went on to confirm the following propositions:[46]
“28. ……
(a) The issue of the writ will satisfy the statute of limitations with respect to all claims which fairly fall within the range or purview of the indorsement;
(b)The indorsement is not in the nature of a pleading, does not form part of the pleadings,and should not be read as such; rather, the indorsement marks out the permimeter or range of the area within which the plaintiff may express its claim in a formal fashion in the statement of claim whether as originally filed or as sought to be amended;
(c) The circumstance that as first delivered a statement of claim does not exhaust the scope of the writ, does not mean that as a matter of law the plaintiff has abandoned all other claims within the scope of the writ; and
(d)The allowance of an amendment to the statement of claim to set up a claim within the indorsement will be a matter of discretion under the applicable Rules of Court.”
(c) Threshold Requirement
41. Whether a new claim or new cause of action arose of the same or substantially the same facts is “a matter of impression”,[47] but Millett LJ in Paragon Finance plcv DB Thakerar & Co(a firm) observed that whilst this may be so in borderline cases, in other cases it must be a matter of analysis.[48] Recorder Paul Shieh SC in Arta Properties Limited held there is no mechanical rule, and the authorities simply set out a common sense approach.[49] Invariably, a spectrum of possibilities will have to be addressed on a case by case basis.[50] “Some will obviously involve (or not involve) substantially the same facts; some less so.”
42. For a new claim or new cause of action to fall within Order 20 rule 5(5) of the RHC, there need not be a complete overlap of the material facts supporting the new cause of action with those supporting the originally pleaded cause of action, ie the new cause of action could arise out of “substantially the same” facts as the cause of action originally pleaded. Ultimately whether it is so depends inter alia on the nature of the causes of action concerned, and the nature/importance of the new facts averred. There is no hard and fast rule.[51]
(d) Discretion
43. As explained above, once the plaintiff has established the proposed amendment does not raise any new cause of action or the proposed new cause of action meets the Threshold Requirement, the court retains discretion as to whether to grant leave for the plaintiff to amend or not.
44. There is no dispute the application under the Amended 1st Summons was prodigiously late, and Mr Chan quite sensibly did not try to argue otherwise. It was made (a) over 13 years after the IoC/SoC, (b) 4 years after P’s Particulars, (c) 1 year after leave was granted by Registrar KW Lung to set the case down for trial, (d) 1½ months after the 1st PTR and (e) less than 3 months before the scheduled first day of trial.
45. After the implementation of the Civil Justice Reform (“CJR”) and in view of the underlying objectives that emphasise substantive as well as procedural fairness, if there is any late application, there must be full account for the lateness and full justification why the application should be entertained. The court expects litigants to give careful and conscientious consideration/attention to the completion of listing questionnaires before a case is set down for trial to minimise belated applications that threaten (and in this case actually upset) the milestone trial dates.
46. The relevant principles on late applications for amendment of pleadings are trite and have been canvassed in a number of authorities. I have summarised those principles in DBS Bank (Hong Kong) Limited v Sit Pan Jit.[52] The court in exercising its case management discretion whether or not to allow a late application to amend pleadings undertakes a balancing exercise by considering all relevant circumstances, and the fact the scheduled trial has been vacated must be balanced against the extreme lateness of the application and the need to move expeditiously forward again towards trial without unnecessary distractions. Moreover, in view of P’s skirmish with D1’s striking out application for want of prosecution in 2012 from which he just about survived, one would have thought P would have taken special care to put forward the fullness of his case with all alacrity.
47. Mr Chan submitted the court (a) has wide powers to allow amendment of pleadings at any stage of the proceedings, (b) is not to punish a party for his error or mistake, and (c) should allow all amendments to enable a party to frame his case for determining the real question in controversy between the parties or for correcting any defect/error in any proceedings.[53] But in my view, such broad principles are subject to the following:
(a) It is clear the court will not order a pleading to be amended unless it is of the opinion the order is necessary for disposing fairly of the cause or matter or for saving costs,[54]and the onus lies on the party seeking the amendment to so satisfy the court.[55]
(b) An amendment will not be allowed if it causes injustice or prejudice to the other party that cannot be compensated by costs. There is also a clear difference between allowing amendments to clarify issues in dispute and those that provide a distinct defence/claim to be raised for the first time.[56] Mr Chan suggested it is sometimes useful to view the defendant’s pleaded defence to determine whether there would be any prejudice,[57] but much depends on the nature of the proposed amendment and the pleaded defence in the particular case.
(c) As explained in DBS Bank (Hong Kong) Limited,[58] such broad principles must be viewed through the prism of delay (especially when it is unexplained and/or unjustified) in the case of a late application, which brings into focus (i) the underlying objectives in Order 1A rule 1 of the RHC, including the need to increase cost-effectiveness, ensure expedition, promote reasonable proportion, and ensure fairness between the parties, and (b) the necessary recognition that the later an application is made to shift the litigation goalposts in terms of pleadings, the more likely it is to cause real prejudice to the other party.[59]
V. BACKGROUND
48. In the IoC and SoC, P pleaded several heads of claim against D1. No leave or consent was obtained for P to file/serve P’s Particulars. In my view, P’s Particulars were somewhat akin to voluntary particulars of the SoC, but such label was not quite apt because P’s Particulars did travel beyond the purview of the IoC and SoC. Before I deal with the evolution of the pleaded heads of claim in the IoC into those in the SoC and then into those in P’s Particulars, and consider the metamorphosis into additional heads of claim in P’s Particulars, all of which were made without leave, amendment and/or consent, I propose to set out briefly the background to P’s pleas in respect of his claims.
49. According to P, SCAT as the Deceased’s sole proprietorship business was established in 1952, and carried on business of refrigeration and air-conditioning repairs, servicing and sale of spare parts (collectively, “Business”) with repair/servicing business carried on at Ground Floor, No 6 Sharp Street East, Hong Kong (“G/F 6SSE”), and sale of spare parts carried on at G/F 4SSE. The Business had been carried on under the firm name of SCAT for over 30 years, and had acquired substantial/valuable goodwill amongst the trade/public for such distinctive and well-known firm name.
50. In the SoC, P claimed that after the death of the Deceased D1 took over SCAT and carried on or caused to be carried on the Business in the name of Stan Company (“SC”) being D1’s sole proprietorship business in Hong Kong at SCAT’s place of business at G/F 6SSE, and SC served the same customers of SCAT from 7 January 1983 to 31 December 1996. P averred D1 deliberately adopted the firm name SC for its resemblance to SCAT to deceive/confuse the trade/public who might have assumed it was another business name of the Deceased, but in fact the firm name of SC (which similarity to SCAT would have been obvious to D1) had no natural connection with D1 or the services he provided. In short, P claimed D1 passed off SC as the business of SCAT, thereby injuring the goodwill of SCAT, and wrongfully profited from such passing off.
51. In respect of the Rental Ppties, P claimed that prior to the death of the Deceased they were mortgaged to Hang Seng Bank Limited (“HSB”) (“Mortgages”) and let out for rental income. After the death of the Deceased, D1 collected and received rent from the Rental Ppties, but failed/fails to account for and pay over to the Estate such rent that he had collected or received and had converted to his own use. But despite having collected or received such rent from the Rental Ppties, D1 wrongfully caused, allowed and/or suffered HSB to sell the Rental Ppties by failing to pay the mortgage payments, and converted the following deposits from such mortgagee sales (“Sale Deposits”) that he received to his own use:
Rental Ppty |
Date of sale |
Sale Deposits (HK$) |
1st Rental Ppty |
12 January 1989 |
330,000 |
2nd Rental Ppty |
5 October 1988 |
350,000 |
3rd Rental Ppty |
22 March 1988 |
195,000 |
4th Rental Ppty |
22 March 1988 |
179,500 |
52. P further claimed D1 failed and/or refused to provide accounts in respect of his dealings with assets of the Estate and to diligently proceed with the application (or to enable the successful application) for grant of the LA.
53. P contended that by reason of the above matters, D1 had wrongfully deprived the Estate of use of cash that belonged to or ought to have been paid to the Estate, so the Estate was unable to settle the estate duty assessed to be payable on the Estate and was therefore liable for interests charged by the Estate Duty Office (“EDO”) on the outstanding estate duty. On 21 June 2001, P on behalf of the Estate made a part payment of $300,000 to the EDO leaving an aggregate outstanding sum of $759,497.70 being the remaining balance of the estate duty and interest accrued thereon due from the Estate. Interest continued to be payable on the outstanding principal of estate duty at the rate of $287,623 per day until full payment.
54. On this note, I now turn to the various heads of claim pleaded in P’s Pleadings to see if the 2nd ASoC Draft raised any new cause of action, and if so, whether such new cause(s) of action met the Threshold Requirement. Mr Bell SC had no objection to certain minor consequential amendments that P proposed as a result of removal of D2 from the present action.
VI. SCAT
55. In the IoC, P claimed for (a) an account of what was due to the Estate being the value of SCAT that D1 “misappropriated and/or wasted” after the death of the Deceased, which value as shown in the accounts of SCAT made up to 31 March 1983 was $1,105,003, and (b) payment by D1 of any amount found due on taking such account.
56. In the SoC, P claimed D1 converted cash and other assets of SCAT to his own use, and the Estate suffered loss of value of SCAT “which as shown in its accounts made up to 31 March 1983, was HK$1,105,003”. P prayed for (a) an account of what was due to the Estate being the reduction in value of SCAT caused by D1, and (b) payment by D1 of the amount found due on taking such account.
57. In P’s Particulars, P claimed for damages in the total sum of $2,462,500 being loss suffered by the Estate:
(a) the sum of $985,000 on the following basis: P averred that SCAT’s “Final Balance Sheet” as at 6 January 1983 produced by D1 and SC’s accounts as at 31 March “1093” showed/ recorded that D1 owed SCAT $998,500.77, which suggested D1 had transferred such sum (or the equivalent thereof) from SCAT to SC, and such sum represented the value of SCAT’s stock-in-trade as at 6 January 1983;
(b) the sum of $1,477,500 on the following basis: prior to his death on 6 January 1983, the Deceased also operated a branch of SCAT at Ferry Street, Kowloon to serve customers in Kowloon and the New Territories, and such Kowloon branch of SCAT would have kept stock and inventory of refrigeration and air-conditioning equipment, accessories and parts of even larger quantity than those kept at the Hong Kong branch; it was further averred that the estimated quantity of stock and inventory of the Kowloon branch would not be less than 1.5 times of the value of stock-in-trade of $994,451.92 shown in the aforesaid “Final Trial Balance”;
(c) the sum of $200,000 on the following basis: immediately after the death of the Deceased D1 collected SCAT’s receivables of not less than $200,000 which were deposited into SC’s bank account with HSB (Causeway Bay branch) and which D1 failed/refused to pay over to the Estate.
58. In paragraph (1)(a) of the prayer of reliefs in the AIoC Draft, P asked for the phrase “which value as shown in the accounts of [SCAT] made up to 31 March 1983 was at HK$1,105,003” in the relief sought in paragraph 55(a) above be deleted.
59. In the 2nd ASoC Draft, P proposed to add the following amendments:
(a) in respect of the averment that D1 converted cash and other assets of SCAT to his own use, (i) D1 had converted from SCAT to SC assets (including the sum of $998,500.77 or its equivalent) that represented value of stock-in-trade of SCAT as at 6 January 1983 of $999,451.93, (ii) SCAT’s Kowloon Branch had 1.5 times more stock and inventory than the Hong Kong branch, so the Estate suffered loss of about $1,477,500 (Kowloon Branch) and $985,000.77 (Hong Kong branch), and (iii) immediately after the death of the Deceased, D1 collected receivables from SCAT of about $200,000 which was deposited into the account of SC at HSB (Causeway Bay branch), but failed/refused to pay over to the Estate “the said monies of not less than $200,000.00” (paragraph 9A(c));
(b) P claimed the Estate suffered loss of value of SCAT which as shown in its accounts “made up to 31 March 1983, was HK$1,105,003$2,462,500.00” (paragraph 10A);
(c) P claimed for “loss of receivables” of $200,000 (paragraph 10B);
(d) P claimed damages under this head in the sums of $985,000 and $1,477,500 totalling $2,462,500 (paragraph 12A);
(e) P claimed he suffered damages in the sum of $200,000 (paragraph 12B).
But notwithstanding the proposed amendments as to the claim for loss and damage as aforesaid, P maintained the prayer of reliefs in the SoC set out in paragraphs 56(a)-(b) above.
60. Before I discuss the vitality of the proposed amendments under this head of claim, I should point out the proposed amendments in paragraphs 59(a)(i)-(ii) above were not easily understood. In the 2nd ASoC Draft, P claimed variously that (a) D1 converted the sum of $998,500.77 which sum represented the value of SCAT’s stock-in-trade as at 6 January 1983, (b) the value of SCAT’s stock-in-trade as at 6 January 1983 was in the amount of $999,451.93, and (c) the loss of stock and inventory for SCAT’s Hong Kong branch was $985,000.77. The 2nd ASoC Draft did not plead any reason or explanation for the difference in the three figures. But for the present purpose, it suffices for me to note that under this head of claim, P by paragraph 12A of the 2nd ASoC Draft limited his claim against D1 for loss suffered by the Estate to the lowest amount of $985,000 instead of the other 2 higher amounts. That being the case, it is not necessary for me at this stage to consider the evidential/other perplexities P might have brought upon himself by putting forward the 3 figures in his pleadings if the proposed amendments were allowed.
61. Turning to the proposed amendments, they concerned P’s existing claim based on D1’s misappropriation/conversion of SCAT’s cash/assets (being part of the Estate) resulting in loss of the value of SCAT. In the IoC and/or SoC, P claimed the value of SCAT (allegedly lost due to D1’s misdeeds) shown in SCAT’s accounts made up to 31 March 1983 was $1,105,003. The proposed amendments purported to amend such premise by pleading that the lost value of SCAT included (a) the value of stock-in-trade as at 6 January 1983 (not as at 31 March 1983) of not only its Hong Kong branch but also its Kowloon branch (which branch was not particularly mentioned/pleaded in either the IoC or SoC) at a total sum of $2,462,500, and (b) the value of collected receivables of SCAT of not less than $200,000 (which was said to have been converted by D1 to his own use by depositing the same in SC’s bank account, but which loss of receivables was not particularly mentioned/pleaded in either the IoC or SoC).
62. Mr Bell SC submitted the effect of the proposed amendments to paragraph (1)(a) of the prayer of reliefs in the AIoC Draft was to generalise the claim by deleting the specificity referred to, which purpose was to lay a foundation to allow the 2nd ASoC Draft to cover P’s claim for an order for an account based on the value of SCAT premised on the lost stock-in-trade and/or inventory of SCAT’s Hong Kong and Kowloon branches in the sums of $985,000.77 and $1,477,500 and additionally the loss of collected receivables of not less than $200,000. Mr Bell SC suggested that by proposing to amend the IoC under this head of claim, P must have implicitly acknowledged the Writ did not cover the amendments sought, which proposed amendments were a new cause of action that increased the scope/extent of the Writ.
63. On the other hand, Mr Chan argued it was sufficient that the relief sought in the IoC under this head of claim was an order for an account to be taken, and P was not constrained by the pleaded value of SCAT of $1,105,003, which merely represented the value of D1’s misappropriation based on evidence available at the time when the IoC and/or SoC were pleaded. But I am not satisfied such submission of itself would have been sufficient.
64. In my view, it would not be enough to say the unamended SoC and the 2nd ASoC Draft both claimed for an order for an account of monies due to P. That would be to view the matter at too high a level of generality. Further, the fundamental principles of pleadings draw careful distinction between the necessity of material facts and the irrelevance of evidence. Quite irrespective of the matter of evidence, a party has to properly raise/plead his cause of action within the applicable limitation period.
65. Here, the true questions were: (a) what cause of action had been mentioned/pleaded in the IoC and/or SoC, and (b) whether the proposed amendments amounted to a new cause of action. Mr Bell SC submitted that since an indorsement marks out the permimeter/range of the area within which a plaintiff may express his claim in a formal fashion by the statement of claim,[60] P (by averring specificity regarding such claim in the IoC) had restricted the scope of the cause of action he could rely on.
66. But in my view, what P asserted by paragraph 1(a) of the prayer of reliefs in the IoC was (a) D1 “misappropriated and/or wasted” SCAT, (b) the Estate suffered loss as a result of such unlawful acts, and (c) such loss as suffered by the Estate was the value of SCAT, and the relief/remedy prayed for was (d) an order for an account to ascertain what was due to P by reason of the matters in (a)-(c) above with a consequential order to pay any amount found due to P. The same cause of action was maintained in the SoC which further clarified the allegation in the IoC that D1 “misappropriated and/or wasted” the value of SCAT to mean D1 converted cash and other assets of SCAT to his own use.
67. When the cause of action in the IoC and/or SoC was properly understood, it was clear the proposed amendments would not substitute the existing cause of action or include any additional claim. Rather the proposed amendments sought to revise the plea as to how the value of SCAT was to be ascertained, ie they proposed to alter the original plea that the value of SCAT as shown in its accounts made up to 31 March 1983 was $1,105.003 to a proposed plea that the value of SCAT was represented by its stock-in-trade as at 6 January 1983 not only in respect of its Hong Kong branch at $999,451.93 (of which $998,500.77 was said to have been converted by D1) but also of its Kowloon branch at $1,477,500, and also by the collected receivables of SCAT of not less than $200,000 that D1 misappropriated.
68. Once properly understood, it is clear such proposed amendments merely altered the calculation of the alleged lost value of SCAT and did not change the material elements of the existing cause of action for the relief/remedy of an order for an account premised on D1’s misappropriation/conversion of cash and other assets of SCAT to his own use that caused loss to the Estate. It was true there was no mention of SCAT’s Kowloon branch in the IoC and/or SoC, but I disagree that the plea as to the value of stock-in-trade of SCAT’s Kowloon branch in the sum of $1,477,500 amounted to a cause of action separate and distinct from the one found in the IoC and/or SoC. Rather, I agree with Mr Chan that the proposed amendments under this head of claim, if allowed, would merely particularise and/or supplement the existing cause of action by setting out how the value of SCAT should be reflected on the proposed basis. But the issue/matter for trial as shaped by the pleadings would remain the same, ie to ascertain what amount D1 misappropriated, converted and/or wasted out of the value of “cash and assets” of SCAT as pleaded, and what was due to P by reason thereof. In the circumstances, the proposed amendments did not fall foul of the limitation bar.
69. But even if I am wrong and the proposed amendments amounted to a new cause of action, by reason of the above discussion I am satisfied they met the Threshold Requirement. SCAT’s Kowloon branch and stock-in-trade thereat as well as the collected receivables of SCAT had not been particularly mentioned/pleaded in the IoC and/or SoC, but it must be remembered that a new claim did not have to arise out of identical/same facts that completely overlap with those supporting the originally pleaded cause of action in order to meet the Threshold Requirement. It was sufficient for such new claim to arise out of substantially the same facts as the cause of action in respect of which relief had already been claimed. In my view, the pleas and averments in paragraphs 66(a)-(c) above as constituting the pleaded original cause of action remained consistently the same even after the introduction of the proposed amendments for which the relief/remedy sought in paragraph 66(d) above had already been claimed in the existing IoC and/or SoC. P relied on the same alleged acts of conversion by D1 as presently pleaded of taking over and carrying on the Business of SCAT and diverting its cash and assets to his own firm SC after the death of the Deceased. I am satisfied the new claim arose out of substantially the same facts as the cause of action in respect of which relief had already been claimed. Subject to the question of discretionary leave, I am prepared to allow the proposed amendments under this head of claim.
VII. SC
70. In the IoC, P claimed for an account due to the Estate for profits made by SC from 7 January 1983 to 31 March 1985 by passing off as SCAT, and for payment by D1 of any amount found due upon taking such account.
71. In the SoC, P claimed for loss of profits made by SC for passing off as SCAT from 7 January 1983 to 31 December 1996. In the prayer of reliefs in the SoC, P prayed for (a) an account of what was due to the Estate for profits made by SC by passing off as SCAT from 7 January 1983 to 31 December 1996, and (b) payment by D1 of the amount found due on taking such account.
72. In P’s Particulars, P claimed damages for the sum of $4,414,200 on the basis that in about 3 years since SC commenced business D1 was able to accumulate sufficient wealth to acquire inter alia various properties in Hong Kong and Sydney with a total net value of $14,714,000 as at December 1997 as disclosed in D1’s divorce proceedings, and it was alleged that a significant part of D1’s assets (ie not less than 30% thereof or $4,414,200) was derived from profits made by SC passing off as SCAT. In P’s Particulars, P further claimed D1 wrongfully occupied G/F 6SSE for SC from 7 January 1983 to 31 December 1996 (see also Part IX below).
73. In the AIoC Draft, P asked for the date of “31 March 1985” in the relief sought in paragraph 70 above be replaced by “31st December 1996”.
74. In the 2nd ASoC Draft, P proposed to add the following amendments:
(a) “[as] for the claim for account, the net total value of landed properties of [D1] owned solely by [D1] as at December 1997 as disclosed in his divorce proceedings with [D2] was $14,714,000.00”, which “is the fruit of [D1’s] intermeddling with the Estate”, and “[as] from 1976 to 1983, [D1] owned no landed properties though he was running his own go-kart business since 1976”, so P claimed that “a significant part (about 30%) of [D1’s] assets was derived from the profits and assets of [SC], passing off as [SCAT]. The sum to be accounted is $4,414,200.00” (paragraph 9A(d));
(b) P claimed for loss of profits made by SC passing off as SCAT for the period from 7 January 1983 to 31 December 1996 in the sum of $4,414,200 (paragraph 10B);
(c) P claimed he suffered loss of profits in the sum of $4,414,200 (paragraph 12B).
75. P’s existing claim was for an account for loss of profits based on a claim of SC passing off as SCAT. Mr Chan submitted the proposed amendments did not raise any new cause of action, and reminded P had already pleaded in the SoC that D1/D2 took over SCAT after the death of the Deceased, and carried on or caused to be carried on the Business of the firm from 7 January 1983 onwards.
76. But it is necessary to start with the proposed amendments for the IoC, which sought to extend the period of the alleged “passing off” for another 11 years from 7 January 1983 to 31 December 1996 instead of to 31 March 1985. In my view, it is plain such proposed amendments were to lay a foundation for P for validating the claim in the SoC for an order for an account of loss of profits in respect of the alleged “passing off” up to 31 December 1996.
77. Mr Bell SC reminded the IoC marked the permimeter/range of the area within which P might express his claim in a formal fashion in the later SoC, and suggested the proposed extension of the period of alleged “passing off” to 31 December 1996 in the AIoC Draft appeared on its face to broaden the scope/effect which the alleged “passing off” would bring. But Mr Bell SC also acknowledged P was permitted in his later SoC to alter, modify or extend his original claim and to claim further or other relief without amendment if the new cause of action arose from facts which were the same as, or include or form part of, facts giving rise to a cause of action in the Writ.[61] Here, it must not be forgotten that as early as in 2002 P had pleaded in the SoC that SC carried on business from 7 January 1983 to 31 December 1996 (and not to 31 March 1985), and prayed for an order for an account of loss of profits made by SC passing off as SCAT from 7 January 1983 to 31 December 1996.
78. Mr Bell SC drew my attention to Hoechst UK Ltd & anor v Inland Revenue Commissioners & anor,[62] which concerned an application for repayment of overpaid Corporation Tax. The claim as originally pleaded was restricted to cover compensation or restitution in respect of the advance Corporation Tax payments from 1989-1994. Neither the writ nor the statement of claim claimed relief by reference to the 1995 advance Corporation Tax, and no part of the quantified claim was derived from the 1995 advance Corporation Tax. When it was sought to amend by pleading a claim for 1995, Park J held that although the background was the same, the central facts from which this new claim arose were not substantially the same as the facts of the original claim – since each year’s events were different, with the result that there was no jurisdiction to allow the amendment.
79. But the situation here was far different from Hoechst UK Ltd & anor. P did plead a claim for loss of profits for alleged “passing off” from 7 January 1983 to 31 December 1996 in the SoC, so D1 had been aware of P’s case under this head of claim since 2001, henc unlike Hoechst UK Ltd & anor, there was no surprise for D1. Further, in paragraph (2)(c) of the prayer of reliefs in the unamended IoC, P had already pleaded that SC wrongfully occupied/used G/F 6SSE “for the period from January 1983 to December 1996”. D1 had also pleaded in answer to the claim in the SoC by his Defence filed in 2002, and he did not raise any limitation defence. I refer to Nintendo Co Ltd v the World Camera and Radio Co Ltd & ors (t/a Kam Moon Camera & Video Co) which held that where a plaintiff’s contention on the claim asserted in the original pleading and the issue for determination arising therefrom were clear, technical objection should not be raised and a simple amendment to the indorsement in the writ of summons would suffice.[63] I see no reason not to allow the proposed amendments in the AIoC Draft for replacing the date of “31 March 1985” with “31st December 1996” in the relief sought in paragraph 73 above.
80. Of more concern is that over and above a claim for an account in the IoC and/or SoC for loss of profits made by SC for carrying on the Business in the name of SC at SCAT’s place of business and serving the same customers of SCAT and thereby passing off SC as SCAT, P now proposed to add what Mr Chan in his submissions described as a case for proprietary tracing relief/remedy into landed properties “owned solely by [D1] as at December 1997” that represented alleged trust properties acquired by utilising the “profits made by SC” from the alleged “passing off”. In the 2nd ASoC Draft, P described this as following the fruit derived from D1’s alleged wrongful intermeddling with the Estate’s assets to which D1 had control and access.
81. However, there was no reference at all to such proposed “proprietary tracing” claim in the IoC. Mr Chan was constrained to accept no tracing remedy into assets derivative from the “profits made by SC” could be found in the reliefs/remedies sought in the IoC and/or SoC, but he argued this “is a mere technicality”, and the court could order payment to P of whatever amount found due to him upon taking an account in respect of the aforesaid “proprietary tracing” claim.
82. I cannot accept such argument. As explained in paragraph 64 above, by merely focusing on the broad nature of the remedy/relief sought is to view the matter at too high a level of generality. A cause of action is not simply a relief/remedy against the defendant. It encompasses every fact/element necessary for a plaintiff to prove (if traversed) in order to support his right to the relief/remedy sought. Hence, the vitality of the relief/remedy sought depends on a viable claim properly framed by a concise statement of the nature of the claim in the IoC and by all material facts necessary for formulating the complete cause of action in the later SoC. In the absence of essential basis/facts to support what Mr Chan described as a “proprietary tracing” remedy, the tribunal taking the account (if so ordered by the court) would only ascertain the “profits made by SC” in carrying on and passing off its business as that of SCAT’s Business being the loss suffered by the Estate as a result of such tort. By failing to assert the existence of any “fruit” derived from such profits (ie a percentage of D1’s interests in landed properties solely owned by him as at December 1997), there would be no material basis for the tribunal taking the account to further fish for any such derivative “fruit”.
83. Anyway, I am highly doubtful whether P has made out a case for “proprietary tracing” relief/remedy by the proposed amendments in the 2nd ASoC Draft under this head of claim. Mr Chan submitted that D1 became a constructive trustee in a wider sense when he came into possession of the Estate’s misapplied funds/assets, so P was therefore entitled to seek a “proprietary” remedy to trace into properties representing the misapplied trust properties. For this, Mr Chan drew analogy between P and the stranger to the trust whom Buckley LJ referred to in Belmont Finance Corporation v Williams Furniture & ors:[64]
“…… in consequence of the fiduciary character of their duties the directors of a limited company are treated as if they were trustees of those funds of the company which arein their hands or under their control, and if they misapply them they commit a breach of trust …… So, if the directors of a company in breach of their fiduciary duties misapply the funds of their company so that they come into the hands of some stranger to the trust who receives them in knowledge (actual or constructive) of the breach, he cannot conscientiously retain those funds against the company unless he has some better equity. He becomes a constructive trustee for the company of the misapplied funds. This is stated very clearly by Jesel, MR in Russell v Wakefield Waterworks Co, where he said:
‘In this court the money of the company is a trust fund, because it is applicable only to the special purposes of the company in the hands of the agents of the company, and it is in that sense a trust fund applicable by them to those special purposes; and a person taking it from them with notice that it is being applied to other purposes cannot in this Court say that he is not a constructive trustee’.”
84. The explanation by Buckley LJ highlighted a significant feature of “proprietary” tracing which is to follow the misappropriated property or misapplied funds (ie the property/funds actually owned by and taken from the wronged party) as they mixed with other property/fund or passed from one party to another, hence such tracing is normally possible so long as, say, the misappropriated/misapplied money continues to exist in a fund (regardless of whether it is mixed or not) which can be located and clearly identified. This is contrasted with the existing remedy/relief in the IoC and/or SoC to claim for an account of loss of “profits made by SC”, which is a personal remedy against D1 for an account in respect of gains made by D1 from the alleged wrongful act of “passing off”. This is not a “proprietary” remedy over any misappropriated property or misapplied funds taken from P as the alleged wronged party.
85. But even if I am wrong and somehow the proposed amendments in the 2nd ASoC Draft set out in paragraph 74 above constituted a “proprietary tracing” remedy as Mr Chan submitted, it is plainly a new cause of action distinct from the existing claim for a personal remedy against D1 for loss of “profits made by SC” from carrying on and passing off the business of SC as SCAT, which new cause of action did not meet the Threshold Requirement. If the unamended IoC and SoC were read objectively, the language of neither of those documents adequately expressed the new material facts that went beyond the existing pleaded assertions by adding that D1 utilised the “profits made by SC” to invest in landed properties in Hong Kong and Sydney owned solely by him. In my view, the proposed amendments went further than merely to clarify the existing claim or to particularise on some material fact already pleaded.
86. Mr Chan referred me to paragraph 11 of the SoC in support of his contention that the proposed cause of action had already been pleaded. But paragraph 11 of the SoC merely pleaded inter alia that D2 knew D1’s total payments of $3,800,000 to her in their divorce proceedings and all payments she might receive from D1 “relate to and/or arise from and/or can be traced to assets or monies which belonged or should belong to the Estate but which have been converted by [D1] to his own use”. Mr Chan submitted that on such basis the proposed amendments did not add anything new, and the nature of claim could therefore be legitimately extended by the proposed amendments.
87. I cannot see how paragraph 11 of the SoC would assist. By the proposed amendments in the 2nd ASoC Draft, P did not seek to trace into monies received or to be received by D2 (in contra-distinction to interests in landed properties solely owned by D1). Indeed, P could not do so because his claim against D2 had been struck out for want of prosecution. On its plain and/or proper reading, paragraph 11 of the SoC gave no clue that beyond the profits SC made as a result of the alleged “passing off”, D1 utilised those profits to acquire landed properties in Hong Kong and Sydney that were “owned solely by [D1]”, and P wanted to “trace” into D1’s interests in those properties. These were different material facts not found in the IoC and/or SoC, but were newly introduced by the proposed amendments that went to the formulation of Mr Chan’s so-called “proprietary tracing” remedy even though they relied on the same background of the alleged “passing off”. But that was mere background, and when the new claim in the proposed amendments was properly analysed, it was clear it did not arise out of the same or substantially the same facts as the cause of action originally pleaded in the SoC.
88. Mr Chan in his written submissions reminded this court of the distinction between general and special damages. The learned editors in McGregor on Damages noted these terms are used in a variety of different meanings,[65] and Mr Chan referred to the meaning of general and special damages therein that “concerns proof”.[66] However, in dealing with a limitation issue, the court is not concerned with evidential proof, but with the meaning of general and special damages in terms of pleadings which is also explained in McGregor on Damages.[67] As discussed in Part III(d) above, whether the loss be general or special, P had to plead all material facts in respect of the purported “tracing” claim in order to provide fair and sufficient indication of the scope of his case to support an order for an account in respect of such claim.
89. To underlie this point, Mr Bell SC referred to Darlington Building Society & anor v O’Rouke James Scourfield and McCarthy (a firm)[68] where Sir Iain Glidewell said that:
“[where] …… the claim was based on a breach of duty, whether arising from contract or in tort, the question whether an amendment pleaded a new cause of action required comparison with the unamended pleading to determine (a) whether a different duty was pleaded; (b) whether the breaches pleaded differed substantially and, where appropriate, (c) the nature and extent of the damage of which complaint was made.” (my emphasis)
Here, in expanding the “passing off” claim from an order for an account of loss of “profits made by SC” from carrying on and passing off the business of SC as the Business of SCAT into an order for an account of traced assets valued at about 30% of D1’s landed properties in Hong Kong and Sydney owned solely by him as at December 1997, P plainly relied on (a) new and different facts never mentioned in the IoC and/or SoC, and (b) a legal nexus between such new facts relied on and the relief/remedy claimed, which reinforced the conclusion that the proposed amendments to the SoC under this head of claim amounted to a new claim that did not meet the Threshold Requirement, and therefore should be disallowed.
90. The above is sufficient to dispose of the matter. But Mr Chan in his written submissions went on to suggest D1 was a constructive trustee in a wider sense according to the concept of “constructive trustee” and “trustee de son tort”, but such discussion did not feature prominently in his oral submissions. For the present purpose, it is important to note the following:
(a) In dealing with the question whether the proposed amendments in the AIoC Draft and 2nd ASoC Draft would trigger a limitation issue, the court was more concerned with the question whether a claim had been properly/sufficiently raised in the pleadings such that the proposed amendments either did not amount to a new claim (in which case there would be no time bar) or, assuming it amounted to a new claim, whether it met the Threshold Requirement (in which case it should be allowed despite the time bar if it is just to do so). As noted in paragraph 36 above, at the 3/3/15 CMC, Mr Chan conceded that unless P satisfied these requirements, the proposed amendments would be time-barred under the applicable limitation period(s).
(b) In any event, Mr Chan’s suggestion that P was a “constructive trustee” and/or a “trustee de son tort” would not assist. As explained below and even on P’s own case, D1 was not a constructive trustee for the law of limitations, and plainly he was not a trustee de son tort even on P’s pleaded case.
(c) More importantly, I am unable to find any plea of “constructive trustee” and/or “trustee de son tort” in the 1st and/or 2nd ASoC Drafts. Mr Chan, citing Joseph Enterprises, Incorporated v Alltronics Technology Company Limited & ors,[69] said P rested his pleaded causes of action on conversion and passing off, but in the absence of additional material averments, such causes of action being alleged unlawful interference for D1’s own benefit[70] of themselves would be insufficient to raise a case of D1 as “constructive trustee” for the law of limitations or as “trustee de son tort”.
91. As regards the suggestion that D1 was a “constructive trustee”, Mr Chan referred to Belmont Finance Corporation where Buckley LJ drew a distinction (a) a company director who due to the fiduciary nature of his duties is treated as if he is a trustee of company funds that are lawfully in his hands or under his control, and who then commits a breach of fiduciary duty and trust by misapplying those funds that came into his hands lawfully, and (b) a stranger to the trust (a non-fiduciary) who received the misapplied funds unlawfully from the company director with knowledge of the breach and who became a constructive trustee for the company of the misapplied funds. Mr Chan drew analogy between P and such stranger to the trust in (b) above who becomes a constructive trustee in a wider sense.
92. But such stranger to the trust who becomes a “constructive trustee” is not a constructive trustee for the law of limitations. McGee, Limitation Periods, has the following to say on the English equivalent of section 20(1)(b) of the LO:[71]
“…… This provision was considered by Millett LJ in Paragon Finance plcv DB Thakerer & Co who distinguished between cases of constructive trustee arising where the defendant, although not expressly appointed as trustee, assumed the duties of trustee by a lawful transaction which was independent of and preceded the breach of trust, and cases where the trust obligation arise as the direct consequence of the unlawful transaction which was impeached by the plaintiff. The second kind of case arises where, if the defendant received trust property at all, it is adverse to the plaintiff by an unlawful transaction and the constructive trust is a remedial constructive trust. Millett LJ doubted whether s.21 applied at all to the position of the second kind. ……” (my emphasis)
McGee, Limitation Periods, refers to a number of subsequent cases, and concludes that Millett LJ’s view that the English equivalent of section 20 of the LO did not apply to remedial constructive trusts is the preferable view. Millett LJ’s views were confirmed in Hong Kong by Hoffmann NPJ in Peconic Industrial Development Ltd v Lee Kwok Fai where he drew the distinction between a fiduciary and a non-fiduciary, the latter being a stranger to the trust who has not assumed any prior fiduciary liability but who has made himself liable by a dishonest act of interference, and is therefore not a “constructive trustee” within the meaning of the law of limitations.[72]
93. So even if it can be said that D1 was a constructive trustee in a wider sense, according to P’s pleaded case (which Mr Chan said rested on the causes of action on conversion and passing off, ie wrongful interference with and receipt of properties/assets of the Estate without any legal authority, and which Mr Chan submitted was analogous to the situation of the stranger to the trust referred to in Belmont Finance Corporation), he would have been a remedial constructive trustee. Indeed, it was P’s pleaded case that D1 unlawfully misapplied/misappropriated the Estate’s properties/assets for his own benefit, eg diverting SCAT’s Business, monies, assets and goodwill for SC’s and his own benefit. It was certainly not P’s pleaded case under the IoC and SoC or even under the 2nd ASoC Draft that at some stage D1 (who was a beneficiary and not the administrator (trustee) of the Estate) as fiduciary assumed duties of a trustee by a lawful transaction that was independent of and preceded the breach of trust. This characterisation applies to the case of, say, the company director discussed in Belmont Finance Corporation.
94. As regards the concept of “trustee de son tort”, Lewin on Trusts explains as follows: [73]
“If a person by mistake or otherwise assumes the character of trustee when it does not really belong to him, he becomes a trustee de son tort and he may be called to account by the beneficiaries for the money he has received under the colour of the trust. A trustee de son tort closely resembles an express trustee …… The principle is that a person who assumes an office ought not to be in a better position than if he were what he pretends; he is accountable as if he had the authority which he has assumed. While it is essential, if a person is to become a trustee de son tort, that he consciously takes the office of trustee, it does not matter whether he knows all the trusts or the extent of his powers. ……” (my emphasis)
Again, it is not P’s pleaded case that D1 “assumes the character of trustee” or “consciously takes the office of trustee”. As explained above, the thrust of P’s existing pleaded case and in the proposed amendments was that D1 committed wrongs against the Estate, ie conversion and passing off without any legal authority in relation to trust assets that he wrongfully seized/used for SC’s and his own benefit. This is made clear in the following passage from Lewin on Trusts that Mr Chan has not cited in his submissions:
“It should not be thought that a trustee de son tort is the counterpart in law of trusts of an executor de son tort in the law of administration of estates. An executor de son tort is defined by section 28 of the Administration of Estates Act 1925 as a person who, to the defrauding of creditors or without full valuable consideration, obtains, receives or holds any real or personal estate of a deceased person or effects the release of any debt or liability due to the estate of the deceased. Such a person is not necessarily a constructive trustee and even when he is he may be a person who acts for his own benefit form the outset rather than one assuming to act for the benefit of the beneficiaries [ie a remedial constructive trustee].” (my emphasis)
95. In my view, D1 was not a “constructive trustee” or “trustee de son tort” for the purpose of the law of limitations, and as such the considerations in section 35(5)-(6) of the LO and Order 20 rule 5(5) of the RHC were applicable. By reason of the aforesaid analysis, I am satisfied the proposed amendments under this head of claim involved the introduction of a new claim that did not arise out of the same or substantially the same facts as the cause of action pleaded in the SoC, and must therefore be disallowed.
VIII. LEO KARTING
96. According to P, Leo Karting was the sole proprietorship business in Hong Kong owned/registered by D1. In the IoC, P claimed for rent and/or mesne profits for Leo Karting’s wrongful use/occupation of 1st Floor, No 6 Sharp Street East, Hong Kong (“1/F 6SSE”) from January 1983 to February 1988 in the total sum of $96,800 or any other sum as the court would think fit.
97. In the SoC, P also claimed for damages for D1’s/Leo Karting’s unauthorised use/occupation of 1/F 6SSE from January 1983 to February 1988 in the total sum of $96,800 or such other sum to be assessed.
98. In P’s Particulars, P claimed D1 wrongfully occupied 1/F 6SSE for Leo Karting from 7 January 1983 to February 1988.
99. In the AIoC Draft, P asked for replacement of “in the total sum of $96,800 or any other sum as this Honourable Court would think fit” in the relief sought in paragraph 96 above with “in the total sum as this Honourable Court would think fit”. Subject to the discussion in Part IX below, D1 had no objection to these proposed amendments.
IX. SHARP STREET PPTY
100. In the IoC, P claimed for loss of rent and/or mesne profits for (a) SC’s wrongful use/occupation of G/F 6SSE from January 1983 to December 1996 in the total sum of $3,252,000 or any other sum as the court would think fit, (b) for Leo Karting’s wrongful use/occupation of 1/F 6SSE from January 1983 to February 1988 in the total sum of $96,800 or any other sum as the court would think fit. As noted in paragraph 99 above, D1 had no objection to the proposed amendments in the AIoC Draft to replace “in the total sum of $96,800 or any other sum as this Honourable Court would think fit” in the relief sought in (b) above with “in the total sum as this Honourable Court would think fit”.
101. In the SoC, P claimed for damages for (a) D1’s trespass upon G/F 6SSE by unauthorised use/occupation of such property as SC’s place of business and storage from 7 January 1983 to December 1996 in the total sum of $3,252,000 or other sum to be assessed, and (b) D1’s/Leo Karting’s unauthorised use/occupation of 1/F 6SSE from January 1983 to February 1988 in the total sum of $96,800 or such other sum to be assessed.
102. In P’s Particulars, P claimed:
(a) D1 failed and/or refused to deliver up to the Estate the entire Sharp Street Ppty (ie Ground, 1st, 2nd and 3rd Floors) until May 2001, so the Estate thereby suffered loss of rental income in the sum of $11,872,704.30:
Premises |
Total market rental (HK$) |
G/F 6SSE |
5,225,000
|
1/F 6 SSE |
2,709,300
|
2nd Floor, No 6 Sharp Street East (“2/F 6SSE”) |
2,385,768
|
3rd Floor, No 6 Sharp street East (“3/F 6SSE”) |
1,552,636.30
|
|
11,872,704.30
|
(b) D1 failed and/or refused to properly repair and maintain the Sharp Street Ppty, which building was therefore laid to waste. It became so dilapidated that several building orders were issued by the Building Department, and P claimed damages being expenses incurred on behalf of the Estate for (a) $436,830 to repair the Sharp Street Ppty and to comply with the building orders, and (b) $48,000 to clean and remove waste.
(c) D1 failed/refused to pay and settle rates in the total amount of $167,032 in respect of the Sharp Street Ppty.
103. In the AIoC Draft, P asked to add a new relief of “(d) Damages for loss of rentals of [the Sharp Street Ppty]”.
104. In the 2nd ASoC Draft, P proposed to add the following amendments:
(a) in respect of the existing allegation in paragraph 9C(c) thereof that D1 failed to pay damages for his unauthorised use and occupation of the “aforesaid properties” during the respective periods, [74] P gave the following particulars:
(i) as a result of D1’s failure and/or refusal to properly repair and maintain the Sharp Street Ppty, it was laid to waste and became dilapidated such that several building orders were issued against it by the Building Department, and P incurred on behalf of the Estate the respective amounts of $436,680 to repair the premises and comply with the building orders and $48,000 to clean and remove waste (paragraph 9C(c)(i));
(ii) D1 failed/refused to pay and settle rates in the total sum of $167,032 in respect of the Sharp Street Ppty (paragraph 9C(c)(ii));
(b) “as a result of the said unauthorized use and occupation,[75] [the Sharp Street Ppty] could not be rented out, the Estate suffered loss of rentals with damages to be assessed” (paragraph 10C);
(c) P claimed to have suffered damages in respect of the Sharp Street Ppty “[to] be assessed” (paragraph 12C);
(d) P prayed for “[damages] for loss of rentals for the [Sharp Street Ppty] as pleaded in paragraphs 9C & 10C” (paragraph 5(c) of the prayer for reliefs).
105. I note that in paragraphs 9C(a)-(b) of the 2nd ASoC Draft, P claimed D1 trespassed upon and wrongfully occupied the G/F and 1/F 6SSE. In the preamble of paragraph 9C(c) of the 2nd ASoC Draft, P averred D1 failed to pay damages for his unauthorised use/occupation of “the aforesaid properties” (ie G/F and 1/F 6SSE) during the respective periods from 7 January 1983 to 31 December 1996 and from 7 January 1983 to February 1988. There was, quite simply, no plea or claim against D1 in the SoC or even in the 2nd ASoC Draft for actual trespass on and/or unauthorised use/occupation of 2/F and 3/F 6SSE. It is also evident from paragraphs (2)(c) and 3(a) of the prayer of reliefs in the IoC and paragraphs 10C(a)-(b) of the 2nd ASoC Draft that P restricted his claim for loss of rental for wrongful trespass and unauthorised use/occupation to G/F and 1/F 6SSE for the limited periods from January 1983 to December 1996 for the sum of $3,252,000 and from January 1983 to February 1988 for the sum of $96,800 respectively.
106. The pleaded basis for the new claim in the 2nd ASoC Draft for loss of rental in respect of the 2/F and 3/F 6SSE appeared in paragraph 10C(c) of the 2nd ASoC Draft which averred that “[as] a result of the said unauthorized use and occupation” (ie D1 trespassed and wrongfully occupied G/F and 1/F 6SSE), the Sharp Street Ppty could not be rented out, and hence the Estate suffered loss of rental for the entire Sharp Street Ppty. However, there was no pleaded fact as to when (if at all) the inability to rent out the Sharp Street Ppty came to an end despite the fact that the claim for loss of rental for trespass and wrongful occupation for G/F and 1/F 6SSE was limited to the periods up to December 1996 and February 1988 respectively. If the loss and damages had been crystallised and/or had become calculable as a result of the termination of any inability to rent out the Sharp Street Ppty, then this would have been a material fact that must be expressly pleaded.
107. Mr Chan submitted that when the Deceased passed away, P was in Canada and had little control over the Deceased’s properties. Mr Chan went on to make a number of submissions, but none of the material facts he referred to found their way into the 2nd ASoC Draft.
108. First, Mr Chan submitted it was inter alia D1’s mismanagement which led the entire Sharp Street Ppty to fall into a state of dilapidation that deterred potential tenants from entering into rental arrangement with P who then suffered loss of rental. There was no plea to such effect in the 2nd ASoC Draft.
109. Secondly, Mr Chan submitted that since then D1 was the wrongful occupier of G/F and 1/F 6SSE, he was expected to have exclusive if not absolute control over the whole Sharp Street Ppty. There was again no plea to such effect in the 2nd ASoC Draft. On the contrary, what was actually pleaded in paragraph 10C(c) of the 2nd ASoC Draft was simply that as a result of D1’s wrongful occupation of G/F and 1/F 6SSE, the entire Sharp Street Ppty could not be rented out. The proposed amendments did not assert D1 had exclusive or absolute control over 2/F and 3/F 6SSE.
110. Thirdly, Mr Chan referred to the correspondence between D1’s solicitors and the Estate’s solicitors in April/May 2001 that resulted in joint arrangements to break open the Sharp Street Ppty and to carry out a joint inspection on/about 10 May 2001 whereupon possession of such property was delivered to the Estate. But there was also no plea to such effect in the 2nd ASoC Draft. Instead, P failed to plead in the 2nd ASoC Draft the period for which P was unable to rent out the Sharp Street Ppty in respect of his proposed claim for loss of rental for such property. But since P restricted his claim of D1’s wrongful occupation of G/F and 1/F 6SSE to December 1996 and February 1988 respectively, in the absence of any other material fact pleaded in the 2nd ASoC Draft in relation to this head of claim, I cannot see how the proposed amendments in the 2nd ASoC Draft would support any suggestion that P’s inability to rent out the entire Sharp Street Ppty due to D1’s wrongful occupation of G/F and 1/F 6SSE would extend beyond December 1996. But this still meant that by the proposed amendments P might seek damages for loss of rental for 1/F 6SSE under paragraph 10C(c) of the 2nd ASoC Draft for a period from March 1988 to December 1996 that would go beyond the period pleaded in the SoC.
111. Hence, notwithstanding the open-end nature of such claim in the 2nd ASoC Draft, it appeared that P might seek thereunder loss of rental in respect of (a) 2/F and 3/F 6SSE from 7 January 1983 to 31 December 1996, and (b) 1/F 6SSE from March 1988 to 31 December 1996 over and above the existing claim in the SoC. But Mr Chan argued the pleaded claim in the 2nd ASoC Draft for loss of rental for the entire Sharp Street Ppty did not constitute a new cause of action, but was merely a head of damage closely connected to the relief previously claimed. But if the proposed amendments for loss of rental from 2/F and 3/F 6SSE amounted to a new cause of action, Mr Chan submitted such claim met the Threshold Requirement, and the court should exercise its discretion to allow the proposed amendments as being “so germane, and so connected with, the original cause of action, that it would be a denial of justice” if leave to add it were refused.[76]
112. I disagree. Although P had already claimed for loss of rental for G/F and 1/F 6SSE in the IoC and SoC, P restricted his claim to the respective periods from January 1983 to December 1996 ($3,252,000) and from January 1983 to February 1988 ($96,800) respectively. In my view, the proposed amendments sought to additionally include new claims for loss of rental in respect of (a) 1/F 6SSE outside February 1988, and (b) for the entire Sharp Street Ppty including 2/F and 3/F 6SSE by relying on new and different facts. As Mr Chan conceded, neither the IoC nor SoC made any mention at all of (i) 2/F and 3/F 6SSE, and (ii) D1’s wrongful occupation of G/F and 1/F 6SSE was the cause of P’s inability to rent out (and hence loss of rental for) the entire Sharp Street Ppty, which new and distinct material facts were essential to the new cause of action. This was not a mere change in remedy but a new claim that did not meet the Threshold Requirement. The proposed amendments for this claim should not be allowed.
113. As regards the claim for repair and cleaning expenses, Mr Chan submitted that since the SoC already set out D1’s wrongful trespass and occupation of the Sharp Street Ppty at the material time, the sole purpose of the proposed amendments was to “visualize” the damages such as expenses incurred for compliance with the building orders and for removal of waste created by D1. Mr Chan argued that but for the wrongful occupation by D1 and failure to maintain the Sharp Street Ppty, these expenses would not have been incurred. But if the proposed amendments were found to be a new cause of action, Mr Chan submitted that they arose from the same facts or substantially the same facts (ie D1’s wrongful trespass upon the Sharp Street Ppty) as a cause of action in respect of which relief had already been claimed.
114. On the other hand, Mr Bell SC submitted this was clearly a new claim, and new material facts (which were never mentioned in the IoC or SoC) were required to be pleaded to substantiate such claim for new relief. Mr Bell SC could not see how those damages could possibly be “visualised” with the existing pleas, and argued that on no account could it be said the claims for both incurred expenses relied on the same or substantially the same facts.
115. I agree with Mr Bell SC. These claims in the 2nd ASoC Draft were out-of-pocket expenses P incurred that were capable of substantially exact calculation, ie special damages, and that must be specifically pleaded. Further, even assuming a trespasser owes a duty of care to repair and maintain the property he wrongfully occupied (a matter which I need not decide), damages for failure to carry out repairs to the property would not be the necessary and immediate consequence of his wrongful occupation (which would have been mesne profits during the period of unlawful occupation), and P must spell out in his pleadings that the compensation claimed would extend to this kind of damage by pleading the material facts of such distinct claim, ie (a) D1 as wrongful occupier owed a duty to P to repair and maintain the Sharp Street Ppty, (b) D1 was in breach of such duty, (c) the Sharp Street Ppty had become dilapidated, (d) building orders were issued against such property, (e) the building orders were caused by D1’s breach of his duty to repair and maintain the Sharp Street Ppty, (f) P complied with such building orders and carried out repairs, and (g) as a result P suffered monetary loss by incurring such out-of-pocket expenses. None of these new and distinct material facts were necessary or relevant for the existing claim for loss of rental as a result of trespass and wrongful occupation, and indeed the reliefs in paragraphs 2(c) and 3(a) of the prayer of reliefs in the IoC made no reference to building orders, repair expenses and/or cleaning costs at all. Plainly, such claims for repair and cleaning expenses were new claims that did not meet the Threshold Requirement.
116. Mr Chan referred to Conquer v Boot, [77] which concerned a claim for breach of contract to complete a bungalow in a good and workmanlike manner. The plaintiff afterwards brought another action claiming in identical terms for breach of the same contract except as to the amount claimed, but added that the contract was to build “with proper materials”. This was followed by particulars different from but of the same character as those in the first action. It was held that the cause of action was the same in both actions, ie breach of the contract of the one promise to complete the bungalow. Talbot J said at pp 344-345 as follows:
“…… and the question whether or not it has been performed is to be decided by the state in which the bungalow was when it was handed over by the defendant to the plaintiff to complete. From that moment the Statute of Limitations began to run as to the whole. The plaintiff could not alter the fact that he was recovering damages for the breach of this single promise by failing to specify in his action all the particulars of the breach and all the damages to which he was entitled. The test whether a previous action is a bar is not whether the damages sought to be recovered are different, but whether the cause of action is the same …… If this were not so the rule would be nullified ……”
In my view, this case is of no assistance to P since it dealt with the same cause of action being breach of the single contract in relation to the state of the same bungalow, and the plaintiff merely added different particulars of the same character. Here, as explained above, the claim, duty, breach and damage were all different.
117. Of more relevance is the case of Steamship Mutual Underwriting Association Limited & anor v Trollope & Colls (City) Limited & ors also cited by Mr Chan. In that case, the statement of claim in its original and amended form related to complaints about the air-conditioning. Subsequently, the plaintiffs noticed cracking and displacement in walls, and applied for leave to re-amend their pleadings to include the defects in the walls. It was held that the allegations concerning the walls were a new cause of action and not within Order 20 rule 5(5) of the Rules of the Supreme Court. The English Court of Appeal referred to Conquer and other cases, and asked what assistance one could get from them. May LJ could not accept the appellant’s submissions that where an owner sues in respect of damage caused to one building, as a result of negligence or breach of contract of his architect in, say, designing that building, then he uses only in respect of one cause of action, whatever may be the nature or extent of that damage or whenever it may have occurred. May LJ said at p 14 that:[78]
“…… In the light of the definitions of a cause of action already referred to, I do not think one can look onto the duty on a party, but one must look also to the nature and extent of the breach relied upon, as well as to the nature and extent of the damage complained of in deciding, as a matter of degree, a new cause of action is sought to be relied upon.”
118. The observations in paragraphs 113 to 117 above apply mutatis mutandis to the new claim for P’s out-of-pocket expenses to clean and remove waste in the sum of $48,000. Mr Chan cited Weldon v Neal[79] for the proposition that a plaintiff would be allowed to amend by adding a claim for special damages when the proof of special damages is essential to the cause of action. I cannot see how this proposition is relevant to the situation in this action. In that case, the English Court of Appeal held that where an amendment set up a time-barred cause of action, as a general rule the court would not allow such amendment to take away the defendant’s limitation defence and therefore unjustly prejudice the defendant. It is subject to this that amendments should be allowed if it can be done without injustice to the other side. In the circumstances, the proposed amendments to add such new claims to the IoC and SoC should not be allowed.
119. As regards the claim for rates in the sum of $167,032, Mr Bell SC submitted this added another new claim in the 2nd AIoC Draft. He agreed that to substantiate such claim for such new relief, at the very least, new material facts as those pleaded in the proposed amendments (which were not pleaded in the unamended IoC and SoC) were required, and such special damages being out-of-pocket expenses could not possibly be “visualised” upon the existing facts.
120. I agree. There is no doubt this was a new claim. Even though it might be argued that such new cause of action in relation to outstanding rates for G/F and 1/F 6SSE for the respective periods from 7 January 1983 to 31 December 1996 and from 7 January 1983 to February 1988 premised on D1’s occupation (albeit allegedly unlawful) of such properties for such periods arose from the same or substantially similar facts as an existing cause of action in respect of which relief has already been claimed in the present action, I still disallow the proposed amendments to claim $167,000 for total amount of rates “in respect of the said premises” (ie the entire Sharp Street Ppty). There was no breakdown as to which part of the outstanding rates was attributable to G/F and 1/F 6SSE for the aforesaid respective periods. In my view, such bundled claim fell foul of the Threshold Requirement as it was not limited to rates for G/F and 1/F 6SSE for such periods. In a late application such as the present one, especially when P had the opportunity to put forward the 1st ASoC Draft and later the 2nd ASoC Draft, it is not for this court to redraft the proposed amendments for P (even if the court can but in this case it cannot).
121. As such, the proposed amendments to add such new claims to the IoC and SoC should not be allowed.
X. LI KWAN PPTY
122. In the IoC, P claimed for rent and/or mesne profits for wrongful use/occupation of the Li Kwan Ppty by D1 and his family (including D2) from January 1983 to December 1989 in the total sum of $442,800 or any other sum as the court would think fit.
123. In the SoC, P claimed damages for the aforesaid trespass against the Li Kwan Ppty in the total sum of $442,800 or such other sum to be assessed.
124. In P’s Particulars, P claimed damages being loss of rental income for such wrongful occupation of the Li Kwan Ppty, which according to the valuation report P obtained in respect of the market rental for the relevant period up to December 1989 was $442,800. In P’s Particulars, P further claimed for rates in respect of the Li Kwan Ppty in the total amount of $4,642.60 which D1 failed and/or refused to pay and settle.
125. In the 1st ASoC Draft, P proposed to add the following to paragraph 9D: “(c) According to the valuation obtained by [P], the market rental of the said premises for the relevant period up to December 1989 is $442,800.00. (d) [D1] has failed and/or refused to pay and settle rates in the total amount of $4,642.60.”
126. In the 2nd ASoC Draft, P removed the proposed amendments in paragraphs 9D(c)-(d) of the 1st ASoC Draft and proposed to add the following amendment, ie P suffered damages in the sums of $442,800 and $4,642 totalling $447,442 (paragraph 12D). In the course of Mr Chan’s oral submissions, he agreed that both such amounts should be removed from paragraph 12D of the 2nd ASoC Draft given the removal of the proposed amendments in paragraph 9D(c)-(d) of the 1st ASoC Draft from the 2nd ASoC Draft.
127. In my view, given Mr Chan’s concession, it is sufficient to dispose of the matter. In any event, the proposed amendments in the 2nd ASoC Draft must be refused. Apart from a proposed plea that P’s claim for damages in respect of the Li Kwan Ppty would include a sum of $4,642, there is no plea of any material fact or averment in the 2nd ASoC of what this amount represented, be it rates or otherwise. If it was special loss or unliquidated damages which were calculable, then the relevant material facts would have to be pleaded. In its present state, the proposed amendments to claim for the sum of $4,642 was defective. More importantly, given the paucity of material facts as to the nature of the claim, P was unable to satisfy this court that the claim of $4,642 was not time-barred. As regards the claim for loss of rental income in the sum of $442,800 specified in paragraph 12D of the 2nd ASoC Draft, such plea was redundant given such claim had been pleaded in the IoC and SoC.
XI. RENTAL PPTIES
128. In the IoC, P claimed for:
(a) “[an] account and payment of the [Sale Deposits] received by [D1] and/or converted to his own use, which deposits so far as [P] can now ascertain before discovery and/or interrogatories amount to HK$23,000.00”;
(b) damages occasioned to the Estate by wrongfully causing, allowing and/or suffering the Mortgages to be foreclosed and the Rental Ppties to be sold by HSB, including (i) loss of rental income from the respective dates of sale to, say, 31 March 1999 (being a date shortly after the issuance of the LA) in the total sum of $2,438,700 or such other sum as the court would think fit, and (ii) difference in market value of the Rental Ppties between their respective date of sale and, say, 31 March 1999 in the total sum of $2,156,500 or such other sum as the court would think fit;
(c) “[an] account and payment of the rental from the Rental [Ppties] collected and received by [D1] and/or converted to his own use, which rentals so far as [P] can now ascertain before discovery and/or interrogatories amount to HK$184,917.00”.
129. In the SoC, P claimed for the same reliefs as in the IoC.
130. In P’s Particulars, P claimed for damages in the sums of $2,829,447, $2,156,500, $97,011.90 and $23,000 as follows:
(a) by failing to pay the mortgage payments on the Rental Ppties, D1 has caused, allowed and/or suffered the Rental Ppties to be sold by HSB by forced sale at prices much lower than the prices they would have fetched if sold by the Estate under normal circumstances;
(b) if the Rental Ppties had not been sold by HSB, the Estate would have collected rental income on them up to 31 March 1999 (ie a date shortly after grant of the LA) when P would be in a position to sell the Rental Ppties in the sum of $2,829,447 (according to valuations obtained by P), which was higher than the Sale Prices of the forced sale by HSB, and hence D1 caused the Estate to suffer damages being the difference in market value of the Rental Ppties in the sum of $2,156,500;
(c) prior to the forced sale of the Rental Ppties by HSB, D1 collected rental income in the total sum of $97,011.90 from the Rental Ppties, but failed and/or refused to pay over such sum to the Estate;
(d) D1 also collected deposits in the total amount of $23,000 from the sale of the Rental Ppties, but failed and/or refused to pay over such sum to the Estate.
131. In AIoC Draft, P maintained the reliefs in paragraphs 128(a)-(b) above, but proposed to amend the relief sought in paragraph 128(c) above as follows: “[an] account and payment of the rental from the Rental [Ppties] collected and received by [D1] and/or converted to his own use, which rentals so far as [P] can now ascertain before discovery and/or interrogatories amount to HK$184,917.00HK$97,011.90”.
132. In the 2nd ASoC Draft, P proposed the following amendments:
(a) “[after] the death of the deceased and prior to the forced sales, [D1] collected or received rent from the [Rental Ppties]”, but D1 “failed/refused to account for and pay over the Estate all rent, ie HK$97,011.90 from the [Rental Ppties], that he had collected or received and/or converted to his own use” (paragraph 9E(b));
(b) the Estate suffered loss in rental income from the Rental Ppties collected and received by D1 and/or converted to his own use, “which rental amount to HK$184,917.00HK$97,011.90 so far as [P] can now ascertain before discovery and/or interrogatories” (paragraph 10E(c));
(c) D1 wrongfully caused, allowed and/or suffered the mortgagee sales of the Rental Ppties, and “[the] Estate has thereby suffered loss in rentals and damages in forced sale” (paragraph 9E(c));
(d) if the Rental Ppties had not been sold by HSB, the Estate would have collected rental income on them up to 31 March 1999 (ie a date shortly after grant of the LA) when P would be in a position to sell the Rental Ppties, and the Estate suffered damages being loss in rentals for each of the Rental Ppties to be assessed (paragraph 9E(d));
(e) P claimed for damages to be assessed in respect of the Rental Ppties (paragraph 12E);
(f) P maintained the reliefs sought in the IoC and SoC in paragraphs 128-129 above save and except that:
(i) in respect of the relief in paragraph 128(b)(i) above, loss of rental income from the respective dates of sale of the Rental Ppties to, say, 31 March 1999 (being a date shortly after the issuance of the LA) “in the total sum of HK$2,438,700.00HK$2,829,447.00 or such other sum as this Honourable Court may deem fit” (paragraph (6)(b)(i) of the prayer of reliefs);
(ii) in respect of the relief sought in paragraph 128(c) above, “[an] account and payment of the rental from the Rental [Ppties] collected and received by [D1] and/or converted to his own use, which rentals so far as [P] can now ascertain before discovery and/or interrogatories amount to HK$184,917.00HK$97,011.90” (paragraph (6)(c) of the prayer of reliefs).
133. D1 had no objection to P’s intention to restrict the claim for loss of rental from the Rental Ppties collected and received by D1 after the death of the Deceased and before the forced sale of the Rental Ppties to $97,011.90 in paragraph 5(c) of the AIoC Draft, and paragraphs 9D(b) and 10E(d) and paragraph (6)(c) of the prayer of reliefs of the 2nd ASoC Draft.
134. The controversial claim related to loss of rental income in respect of the Rental Ppties. The loss covered two periods. The first period was from the respective dates of sale of the 4 Rental Ppties (ie 12 January 1989, 5 October 1988, 22 March 1988 and 22 March 1988) until 31 March 1999 (ie a date shortly after the grant of LA) on the basis that if the Rental Ppties had not been sold by HSB, the Estate would have earned rental income on them until a time when P would have sold the Rental Ppties after obtaining the LA. The claim for loss of rental during the first period had been claimed in the unamended IoC and SoC.
135. However, I am not persuaded that I should allow the proposed amendment in paragraph (6)(b)(i) of the prayer of reliefs in the 2nd ASoC Draft to alter the total amount of loss of rental for the first period from $2,438,700 to $2,829,447. In the absence of any material fact in the body of the 2nd ASoC Draft to support this change and the continued maintenance of the amount of $2,438,700 in paragraph 10E(b) of the 2nd ASoC Draft, there was no basis to allow such amendment.
136. The second period related to the period after the death of the Deceased and prior to the sale of the 4 Rental Ppties. Such claim was not mentioned/pleaded in the existing IoC and/or SoC. In short, what P purported to do by the proposed amendments in the 2nd ASoC Draft was to push back the commencement of the relevant periods for claiming loss of rental to August 1983 (to 11 January 1993), May 1987 (to 4 October 1988), January 1983 (21 March 1988) and January 1983 (to 21 March 1988).
137. Mr Chan submitted that this head of claim was consequential upon D1’s failure to cooperate with P to pay off the mortgage repayments, ie P’s mother requested D1 to move out of the Li Kwan Ppty to enable it to be sold but D1 refused, so there were no available sale proceeds to redeem the mortgages in respect of the Rental Ppties, which were eventually disposed of under mortgagee sale. Mr Chan further submitted P suffered loss from (a) sale of the Rental Ppties at substantially reduced prices, (b) D1 siphoning the sale proceeds of the Rental Ppties, and (c) loss of rental from the dates of sale of the Rental Ppties to the date when the LA was granted (which P would have collected but for D1’s failure to cooperate with P).
138. But the loss in (c) above related to the first period discussed in paragraph 134 above, which was covered by the IoC and/or SoC, and was not concerned with the second period newly added in the 2nd SoC Draft in paragraph 136 above. I do not agree that such proposed amendments were merely “cosmetic amendments” (as described by Mr Chan) to clarify what had been pleaded. Plainly, this is a new head of claim/damages that depended on new and different facts as to the situation of the Rental Ppties before the mortgagee sale. I do not agree with Mr Chan’s suggestion that this was covered by paragraph (6)(b)(i) of the prayer of reliefs in the SoC as against D1. That relief/remedy claimed for loss of rental income for the Rental Ppties “from the respective dates of sale to 31st March 1999” in contra-distinction to loss of rental income in the pre-sale period. I agree with Mr Bell SC that the proposed amendments would bring in a new claim that would involve new and different facts (ie different condition of the Rental Ppties during the different time period) that would not meet the Threshold Requirement. Mr Bell SC reminded that Nourse LJ in Balfour Beatty Construction Ltd v Parsons Brown & Newton said the question was one of:[80]
“true construction of the statement of claim as originally drawn. The process of construction must not be unduly literal or pedantic. And yet a pleading, being a formal document, cannot be held to include a cause of action its language did not adequately express.”
139. Mr Bell SC further reminded that, as observed by Ma CJHC (as he then was) in Wing Hang Bank Ltd v Crystal Jet International Ltd & ors,[81] it is important that issues are pleaded properly, distinctly and adequately so that the opposite party and the court are clearly informed as to the parameters of the trial, and proper preparation was possible. At p 799, Ma CJHC (as he then was) said:
“6(2) …… Obviously, counsel must be astute to object when necessary but the primary responsibility of ensuring that any issue is properly before the Court is on the party seeking to advance that issue. He must do so clearly and not ambiguously, and the usual way of doing so is through the pleadings. Care must be taken to plead the issues clearly, and not draft pleadings either vaguely or ambiguously perhaps in the hope that the other side might not readily or easily understand a party’s real case. ……”
140. Further guidance, albeit trite, had fallen from the Court of Final Appeal on the importance of pleadings. I refer to Sinoearn International Ltd v Hyundai-CCECC Joint Venture (a firm)[82] and Kwok Chin Wingv 21 Holdings Limited.[83] In the former case, Ribeiro PJ noted that “ …… A party must raise all the issues he wishes to raise to be dealt with at the trial. Parties are not entitled to have issues recently thought up dealt with separately and piecemeal. The other party is entitled to know from a clear pleading what is the entire case he has to meet so that he can decide whether particulars should be sought; how he should plead in response; what discovery he is entitled to; what evidence he should adduce to meet it; and what points of law should be taken. …… How could one expect the other side to dispute, or to come ready with evidence to refute, a point that has not been pleaded or even formulated in draft? …… Pleadings are not mere formalities. They impose a necessary discipline and are fundamental to enabling every procedural facet of the adversarial system to operate fairly.”[84] Mortimer NPJ at paragraph 84 on page 663 summed it all in saying that “[claims] must be made and answered in pleadings or injustice may be the result”. In the latter case, Ma CJ said as follows[85]
“21. ……It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced. As the Court of Appeal remarked in Wing Hang Bank Ltdv Crystal Jet International Ltd:
(2) In a trial, particularly where evidence is given by witnesses, it becomes extremely important that each side knows exactly what are the live issues. Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained. It will simply not do for unpleaded issues to be ‘slipped in’ when evidence is being given in the hope that the other side is not sufficiently alert to object.”
22. …… It is simply not permissible for an issue to be raised in this way: one does not sift through the evidence adduced in a trial in the hope that something was said that can conceivably found a cause of action. Issues, I would reiterate, must be properly pleaded unless for some reason the pleadings have assumed a less significant role in the proceedings. ……
23. The purpose of pleadings, in clearly and unambiguously setting out the true extent and nature of a dispute not just for the benefit of the parties but also for the Court in managing and trying cases, remains important under our system of civil justice. The retention of the old rules as to pleading as well as the introduction of new provisions over four years ago under the Civil Justice Reform, reinforce this.”
141. These observations reinforced the conclusion that the proposed amendments in the 2nd ASoC Draft that introduced the claim for pre-sale loss of rental in respect of the Rental Ppties were a new cause of action that extended the claim to different scope and extent of interference and damage. Although the original SoC pleaded certain background facts, it did not make a claim for pre-sale loss of rental income. In my view, the proposed amendments that made such claim plainly involved a new cause of action, and it could not be said that such claim arose out of the same or substantially the same facts. The fact that D1 failed to make mortgage payments in respect of the Rental Ppties which eventually led to the mortgagee sale was an insufficient material fact to support the claim for loss of rental in the pre-sale period which necessarily turned on how D1’s acts/conduct during the pre-sale period allegedly prevented P from letting the Rental Ppties. Regrettably, apart from a bare assertion that the period for loss of rental in respect of the Rental Ppties be pushed back to August 1983, January 1983, January 1983 and May 1986 respectively, no material facts in relation to such acts/conduct by D1 had been pleaded in the proposed amendments in the 2nd ASoC Draft at all to formulate a complete cause of action. The proposed amendments should not be allowed.
XII. ESTATEDUTY
142. In the IoC, P claimed for damages suffered by the Estate as a result of D1 “failing and/or refusing to provide accounts in respect of the Estate and failing and/or refusing to diligently proceed with or enable the successful process of the application for grant of the [LA] resulting in penalty and late payment interests being charged by the [EDO] on the estate duty they duly assessed to be able payable on the Estate”.
143. In the SoC, P prayed for damages to be assessed on account of interests charged by the EDO on the outstanding estate duty assessed to be payable on the Estate.
144. In P’s Particulars, P claimed he suffered and had to pay on behalf of the Estate substantial interests on the principal sum of estate duty payable on the Estate in the total sum of $831,120.
145. In paragraph 12F of the ASoC 2nd Draft, P proposed an amendment to add the plea that P suffered damages in respect of “[interests] on outstanding Estate Duty” “[to] be assessed”. In my view, this is uncontroversial and should be allowed.
XIII. INTEREST ON LOANS
146. In P’s Particulars, P claimed that in order to obtain cash for paying/discharging various payments on behalf of the Estate (including repairing/cleaning the Sharp Street Ppty, paying the estate duty and interest thereon due to the EDO, paying diverse expenses such as long distance telephone calls and postage, and paying legal costs etc), P had to seek financial assistance in Canada and incurred interest on such borrowings. P claimed damages being such accrued interest and expense payments in the total sum of $5,972,827.00 as at 31 December 2008 and continuing.
147. In P’s Particulars, P also averred he had incurred a total amount of $76,500 for obtaining valuation reports in respect of various properties of the Estate, and claimed against D1 for such sum.
148. In paragraph (7) of the prayer of reliefs in the AIoC Draft, P added a plea of “[damages] including interest and expenses incurred by [P] as a result of [D1’s] act of intermeddling with the Estate”.
149. In the 2nd ASoC Draft, P proposed to add the following amendments:
(a) “[P] will rely on the following matters, inter alia, in the assessment of damages in this Action:-
[P] has paid various expenses incurred, resulting from [D1’s] wrongful acts, including the repairing and cleaning of the [Sharp Street Ppty], including interest pleaded under Paragraph 10F hereinabove, and (including but not limited to long distance telephone calls and postage), and legal costs. [P] had to borrow to pay up the aforesaid expenses. The interests and expenses of [P] is at the amount of HK$5,972,827.00 as at 31st December 2008 and are continuing.” (paragraph 10G);
(b) P claimed to suffer damages in respect of “Damages – Interests and Expenses” “[to] be assessed” (paragraph 12G);
(c) P prayed for payment of “[interest] and expenses as pleaded in paragraph 10G hereinabove” (paragraph (7) of the prayer of reliefs).
150. I agree with Mr Bell SC that the proposed amendments added a completely new claim in the AIoC Draft and 2nd ASoC Draft for interest and expenses allegedly incurred by P as a result of D1’s alleged acts of intermeddling with the Estate. There was simply no plea in relation to the same in the unamended IoC and SoC. I disagree with Mr Chan’s suggestion that the proposed amendments concerned consequential damages flowing from D1’s intermeddling acts and were not a distinct claim as such. Plainly, these out-of-pocket expenses (and hence special damages which must be expressly pleaded) were damages of a kind which were not the necessary and immediate consequence of the wrongful act. P had to plead the necessary material facts of borrowing money and incurring interest and expenses to support such claim. It was a new claim on new facts, and must be disallowed. Further, the sum of $5,972,827 was wholly unparticularised, but I am unable to see what were interests on borrowings and what were incurred expenses. I have rejected P’s proposed amendments to claim for the expenses/costs of repairing and cleaning the Sharp Street Ppty, and I cannot see how such claim can be made here under another guise. I also do not understand why legal costs and disbursements would not go to costs of the action which if awarded would have to be taxed. Still further, Mr Chan submitted that P recovered possession of the Sharp Street Ppty in 2001. Whatever interests/expenses incurred in relation to such property should have crystallised after 10 years, but the proposed amendments did not explain why the interests/expenses were still “continuing”.
151. Mr Chan referred to Chan Sik Pan v Wylam’s Services Limited & ors,[86] which concerned an appeal from a judgment after trial for common law damages for injury on duty. The 1st defendant contended on appeal that the judge was wrong to allow the plaintiff to add a new cause of action the limitation of which had long expired. The original cause of action was for breach of employer’s duty and negligence in failing to provide and/or maintain safe tools. It was held that to add an allegation that the defendants had failed to provide a safe place of work was no more than adding new particulars of breach of employer’s duty and negligence to the cause of action already alleged in the statement of claim, and hence the question of limitation did not arise. But in that case, it was also held the allegation of a breach of statutory duty under Regulation 38N of the Construction Sites (Safety) Regulations was a new cause of action, and the relevant amendment should have been disallowed. I cannot see how this case is of assistance save to note that although the proposed amendments maintained the same claim for damages for personal injuries, a different allegation of breach of statutory duty constituted a new cause of action.
XIV. LATENESS OF THE APPLICATION
152. Following from the aforesaid analysis, certain parts of the proposed amendments either did not constitute new causes of action or if they did, they met the Threshold Requirement. I will have to go on to consider whether I should grant discretionary leave for those proposed amendments. Before I do so, I shall consider whether D1 has put forward a justifiable explanation/excuse for the lateness of the application. Again, I have to turn to the archeology of the matter.
153. I note that P by his Check List filed on 3 September 2004 confirmed his pleadings would not require any further amendments and there was no need to deal with any further interlocutory matters at least in relation to pleadings. However, after P’s Particulars were filed on 25 March 2010, P filed his Listing Questionnaire 2 years later on 22 March 2012 stating inter alia that the case was not ready for trial and that P intended to amend his SoC. Indeed, in the proposed directions annexed to P’s Listing Questionnaire, it was suggested that P be given liberty to take out a summons for amendment on or before 29 April 2012 if so advised. At the CMC before Master Ko on 29 March 2012, he ordered the “[parties] to take out all interlocutory application within 28 days from the disposal of the Summonses [for striking out for want of prosecution], such as amendment of pleadings, further discovery and supplemental witness statements as contemplated in the Questionnaires”. But despite P’s expressed intention to amend his pleadings some 2 years after P’s Particulars were filed, P did not apply for leave to do so. By the time P filed his Listing Questionnaire on 8 January 2014, he had changed his stance to state he had no intention to take out any other interlocutory applications.
154. What was evident from the above chronology was that despite P’s Particulars and (on P’s case) alleged non-objection by D1 to such particulars for 2 years, P knew he had to amend his pleadings in order to comply with the pleading requirements and to properly plead the material facts and causes of action that he now intends to rely on, and yet he subsequently (presumably under legal advice) chose not to proceed with the application for amendments of the SoC.
155. The present application for amendment of the IoC and SoC was made some 12 years after such pleadings were filed and 1 year after the present action was set down for trial. The trial was due to be heard in March 2015, and was eventually vacated due to such pending interlocutory application. The Amended 1st Summons was very late, and in light of P’s earlier expressed intention to amend pleadings and his subsequent decision not to do so, it would not attract much sympathy unless there was justiable excuse, especially when after the CJR it should be expected that the opposing party would complain of such late attempt to move the litigation goalposts.
156. P tried to put forward an explanation for the delay in the Choi 1st, 2nd, and 3rd Affs. Choi claimed that (a) in the course of the litigation it was at times difficult to take instructions from P since he suffered from polio and was confined to a wheelchair (so it was not easy for P to travel to Hong Kong from Canada where he lived) or for P’s solicitors to take detailed instructions through overseas calls, and (b) after the 1st PTR P’s solicitors were unable to contact P for about 1 month as he made a trip to the United States for the whole of December 2014. P’s solicitors managed to contact him in early January 2015 and since P’s return to Hong Kong on 29 January 2015, P’s solicitors had taken more detailed instructions from him. It was suggested that P’s wish to amend his pleadings was necessitated by change of circumstances after the 1st PTR, ie when it came to P’s attention there was issue as to “admissibility” of P’s Particulars. Mr Chan submitted that previously there was no challenge from D1 and P thought they would form part of P’s pleadings.
157. I am unable to accept such explanation. First, it was incumbent upon P who chose to pursue this litigation against D1 to make sure he was able to effectively communicate with his legal representatives and to give instructions as and when needed. The fact he made himself incommunicable to his solicitors for a month around the time of the 1st PTR did not justify the delay. Whilst P’s physical condition is recognised, in this modern age with easily accessible modes of communications by telephone, fax, email and video-linked communications, I cannot see how P’s physical condition and physical absence from Hong Kong would bar effective communication with his solicitors. Indeed, this need to communicate across the world is nothing new since the present action had been ongoing for years.
158. Choi claimed that previously D1/D2 (despite having legal representation) never objected to the “admissibility” of P’s Particulars to which D1 failed to file any answer even when (a) P relied on P’s Particulars at the hearings before Recorder Yu SC on 22 December 2009, before DHCJ Lok (as he then was) on 16 November 2011 and 9 February 2012, and before Suffiad J on 12 July 2012, and (b) the heads of loss/damages in P’s Particulars were canvassed and argued on at those hearings. Choi suggested D1 must have known of P’s reliance on P’ Particulars even though at some stage he was self-represented, hence the proposed amendments did not seek to add anything new to P’s Pleadings or raise any new dimension or focus that would shift the litigation goalposts.
159. P’s reliance on P’s Particulars at the hearings before Recorder Yu SC and DHCJ Lok (as he then was) is neither here nor there because they concerned interlocutory injunctive relief and even after those hearings P by his Listing Questionnaire and at the CMC before Master Ko still maintained he had to amend his pleadings. As for the hearing of D1’s striking out application before Suffiad J on 12 July 2012, D1’s counsel did point out that P indicated in his Listing Questionnaire dated 22 March 2012 that P intended to amend his pleadings, which submissions were obviously part of D1’s complaint made in support of his application to strike out P’s claim for want of prosecution that P’s litigation goalposts remained unsettled even after so many years. In face of such submissions, P through his counsel conceded P would not amend his pleadings. There is no need for me to speculate whether such concession was made to diffuse D1’s complaint before Suffiad J, but I am unable to accept Choi’s suggestion that such concession was made in the belief there was no challenge to the “admissibility” of P’s Particulars and/or they formed part of the pleadings. At that time, D1 had not pleaded any answer to P’s Particulars and (but for P’s “concession”) was expecting P to amend his pleadings (with consequential entitlement to amend D1’s own pleadings in response thereto if leave were granted). In any event, the authorities discussed in paragraphs 138-139 above made clear that it was for P to put his own pleadings in order and not to proceed “in the hope that the other side is not sufficiently alert to object”.
160. In the end, Choi accepted it was “just probably this has not been the focal point of all the parties throughout this action and thus, escaped everyone’s attention”. He explained that P’s Particulars were filed in 2010 without leave long after the consent order was made in 2004 for adjournment of the checklist review, and over the years there had been several changes of P’s handling solicitor, so the issue of seeking leave of the court for amendment of pleadings was not immediately apparent to the successive handling solicitors.
161. In my view, whilst the matters in the above paragraph may explain why P had not promptly attended to the matter of amendment of pleadings, it did not and could not explain P’s expressed intention in 2012 to amend pleadings and his subsequent decision to abandon such intention to amend by mid-2012 or at the latest by 2014. In any event, the matters raised in the above paragraph did not amount to any good justification for the delay nor can D1 be faulted in relation to those matters.
162. By the time P prepared P’s Particulars to raise “new claims” that travelled beyond the parameters of the IoC and SoC, P necessarily had to seek leave or consent to amend the IoC and SoC, and he could not have slipped in such “new claims” under the guise of voluntary particulars without leave or consent. Since voluntary particulars are part of pleadings, their propriety in contra-distinction to that of evidence is not a matter of non-objection as to “admissibility” by the other party. Further, the lateness of the Amended 1st Summons must be further viewed against the leisurely pace of litigation dictated by P’s slow approach and overall historical delay (and not just delay since service of P’s Particulars), which in my view was not justified by any good reason.
XV. DISCRETION
163. Mr Chan suggested the court should exercise its discretion to allow the proposed amendments that were not new claims or were new claims that satisfied the Threshold Requirement) because they were “so germane, and so connected with, the original cause of action, that it would be a denial of justice” if leave to add it were refused.[87] In the Choi 3rd Aff, Choi suggested such proposed amendments ought to be allowed for the purpose of determining the real question in controversy between the parties,[88] and since the trial was adjourned such proposed amendments would not cause D1 to suffer prejudice as there would be time and opportunity for the parties to put forward the fullness of their respective case.
164. Mr Chan also argued that since the “heads of damages” in the proposed amendments were substantial as compared to the existing claim, on the basis of the proportionality principle and bearing in mind D1 was previously aware P wished to put forward such claims (and therefore could not have been surprised and/or prejudiced), leave should be granted for P to amend the IoC and SoC as proposed.
165. On the other hand, Mr Bell SC asked me not to exercise the discretion to grant the proposed amendments. He submitted that P was seeking to make additional claims against D1 regarding events that took place up to 30 years ago, and D1 would face difficulty of gathering evidence on the events that took place then. There would also be inevitable fading of memory. Mr Bell SC claimed there would be irreparable prejudice since 2 important witnesses had passed away, one being Lam Bor (a cousin of D1) and Lam Mo Chun (sibling of D1) who should both be able to give relevant evidence.[89]
166. In my view, for the proposed amendments in relation to SCAT and SC in Parts VI and VII above that did not infringe the limitation bar, I am persuaded D had the opportunity to consider and address “substantially the same facts” that underlied such claims albeit some modification and alteration were brought about by the amendments.
167. Like Suffiad J in his Decision handed down on 13 March 2013, I am unimpressed by D1’s complaint of prejudice which was of a very general nature. The proposed amendments that survived the limitation issue were very limited, and despite the delay I am unable to find irreparable prejudice. Of course, there may be some fading of memory, but I am unable to say it would be significantly more severe for the permissible proposed amendments as compared to the existing pleas. As for the 2 potential witnesses who had passed away, I agree with the observations by Suffiad J in relation to such witnesses, and Mr Bell SC had not identified with specificity what these potential witnesses could have said about the new matters. In all the circumstances, I grant leave to amend on the proposed amendments in relation to SCAT and SC that crossed the limitation hurdle.
XVI. EXPERT EVIDENCE
168. At the 3/3/15 CMC, Mr Chan decided not to rely on the expert valuation reports previously obtained because several of the surveyor experts were no longer available to act as P’s experts to give evidence at trial to adduce their own valuation reports. In the circumstances, I granted the following orders at the 3/3/15 CMC:
(a) leave be granted for P to withdraw the table titled “Open Market Value and Rental Values” on pages 2-5 under paragraph 1 of the Amended 1st Summons;
(b) the following expert valuation reports obtained by P shall not be admissible at the trial of this action:
| |
Hearing bundle (pages)
|
Valuation reports by Brian Li of Dudley Surveyors Ltd (“Dudley”):
(1) G/F and 1/F 6SSE;
(2) Li Kwan Ppty;
(3) 1st Rental Ppty;
(4) 2nd, 3rd and 4th Rental Ppties |
B5/1084-1105
B6/1145-1164
B6/1254-1270
B6/1271-1293
|
Valuation report by Ellen Lo of Dudley:
(1) Sharp Street Ppty |
B5/1105-1114
|
Valuation report by Chris Tang of ADvice Surveyors Limited:
(1) Sharp Street Ppty |
B5/1115/1139
|
Valuation report by unknown person:
(1) Li Kwan Ppty |
B6/1175-1178
|
Valuation report by Dudley:
(1) 1st Rental Ppty
(2) 2nd, 3rd and 4th Rental Ppties
(3) Rental Ppties |
B1294-1296
B6/1279-1299
B6/1309-1310
|
Invoice by Dudley for preparing valuation reports |
B5/1027-1030
B6/1165
|
169. Mr Bell SC indicated that D1 had no objection in principle to obtain expert valuation evidence, but did not agree to the use of a single joint surveyor expert. In my view, it is premature at this stage to decide whether P and D1 should be allowed to engage separate or single joint surveyor expert(s) when this round of amended pleadings had not been closed. Since the Amended 1st Summons was reserved for consideration at the next CMC, the parties and the learned master hearing such CMC should bear in mind the following considerations:
(a) when framing the expert directions (if any), care should be taken to identify (i) the disputed issues for which expert valuation evidence would be required to assist court at trial, (ii) the expert issues which the expert surveyor(s) would have to address in his/their separate or joint expert report(s), and (iii) the relevant valuation dates;
(b) P and D1 should make sure there is an agreed set of documents to be shown to the singe joint or separate surveyor expert(s);
(c) P and D1 should send joint instructions to the single joint or separate surveyor expert(s) for preparing the expert valuation report(s).
XVII. CONCLUSION
170. To ensure there will be tightened case management control by the court with a view to bring this case forward to trial again as soon as possible, I direct that:
(a) all CMCs, direction hearings and interlocutory applications in the present action be docketed to be heard and/or dealt with by Master H Au-Yeung who shall be at liberty, where appropriate, to refer any matter or application to be heard by any judge;
(b) the present action be adjourned for CMC before Master H Au-Yeung on a date to be fixed with 1 hour reserved (“Next CMC”);
(c) within 7 days from the date of this order, P (failing whom D1) shall attend before the listing clerk to fix the date for the Next CMC;
(d) subject to paragraph (e) below, the Next CMC shall not be heard before 77 days from today;
(e) where appropriate, both P and D1 may by consent summons or either party may by summons apply to Master H Au-Yeung to expedite the hearing of the Next CMC with reasons on affidavit.
171. In respect of the Amended 2nd Summons, I grant the following orders:
(a) leave be granted for P to withdraw P’s Particulars;
(b) leave be granted for P to amend the Writ by amending the IoC endorsed thereon in the manner marked in red as per the parts of the AIoC Draft specified in Part A of the Schedule annexed to this Decision (“Schedule”);
(c) leave be granted to P to amend the SoC in the manner marked in red as per the parts of the 2nd ASoC Draft specified in Part B of the Schedule;
(d) within 14 days from today, P shall file and serve the Amended Writ with the Amended IoC endorsed thereon and the Amended SoC;
(e) the acknowledgement of service already filed by D1 shall stand as D1’s acknowledgment of service to the Amended Writ;
(f) leave be granted for D1 to file and serve Amended Defence (if so advised) within 21 days thereafter;
(g) leave be granted for P to file and serve Amended Reply (if so advised) within 21 days thereafter;
(h) leave be granted to P and D1 to file and serve further supplemental list of documents (if necessary) within 14 days thereafter;
(i) leave be granted to P (if so advised) to further amend the Amended 2nd Summons by replacing the draft supplemental witness statement of Lam Sik Ying annexed thereto with a revised draft supplemental witness statement of Lam Sik Ying;
(j) no later than 14 days before the Next CMC (but excluding Saturday, Sunday and public holiday), P shall file the Re-Amended 2nd Summons (if any);
(k) subject to (i)-(j) above, paragraphs 5-6 of the Amended 2nd Summons be adjourned to be heard at the Next CMC;
(l) the issue of whether leave shall be granted for D1 to incorporate D1’s Additional Paragraphs in any supplemental witness statement to be served by D1 with leave of the court pursuant to paragraph 6 of the Amended 2nd Summons be reserved for consideration and, where appropriate, determination at the Next CMC;
(m) there be a costs order nisi that costs in respect of paragraphs 5-6 of the Amended 2nd Summons be reserved;
(n) subject to (m) above and (o) below, costs of and occasioned by P’s amendments to the IoC and SoC and by P’s withdrawal of P’s Particulars be paid by P to D1 to be taxed if not agreed;
(o) there be a further costs order nisi that 75% of the costs of and occasioned by the argument in respect of the paragraph 1 of the Amended 2nd Summons (including all costs reserved, if any) be paid by the P to D1 to be taxed if not agreed;
(p) there shall be certificate for two counsel.
172. In respect of the Amended 1st Summons, I direct that such summons be adjourned to be heard at the Next CMC with costs reserved.
173. Mr Chan accepted P should bear the costs of and occasioned by the amendments to the IoC and SoC in the usual manner. In respect of the argument in relation to P’s proposed amendments in the AIoC Draft and 2nd ASoC Draft, D1 was successful in resisting the bulk of the amendments. There is no reason why costs should not follow event, and hence I granted the costs order nisi in paragraph 170(o) above.
174. In the course of his submissions, Mr Bell SC submitted that P’s pleadings, especially the SoC (and now the to-be-filed Amended SoC), was singularly unparticularised. I tend to agree with Mr SC. In many respects, the P’s pleadings read more like assertions of what P wished to claim rather than setting out all facts and particulars that would formulate the complete cause of action. In a case with such history, it is important to tie down the precise scope and parameters of P’s case so that (a) both the court and the parties are clear as to the four corners of the disputes, (b) the court can effectively ensure that the evidence will not travel to extraneous areas, and more importantly, (c) the court can police the litigation to exclude extraneous/irrelevant issues/matters slipped in as a result of nebulous ambiguity in the pleadings. Parties should carefully consider whether requests for particulars should be made to tie down the amended pleadings, and the learned master should review the pleadings and particulars (if any) for the CMC to ensure that they are sufficiently clear, precise and tidy before parties move for leave to file/serve supplemental witness statements. Again, in a case of such history, I urge the learned master to exercise proactive case management to ensure that the pleadings effectively set the scene for trial, and if they do not, to give bold directions to properly elicit clear claims and defences.
175. At the 3/3/15 CMC, I understood from Mr Chan and Mr Bell SC that there were other related legal actions (eg HCA1605/2004 and HCA894/2011). It appeared that HCA1605/2004 in which D1 was also involved had proceeded to trial on 20 April 2015. I therefore order that notwithstanding the provisions in Order 25 of the RHC, no later than 14 days before the Next CMC (excluding Saturday, Sunday and public holiday), P and D1 shall file/serve their respective Listing Questionnaire, and such Listing Questionnaires shall set out inter alia the status and progress of all related actions.
176. Additionally, the learned Master should consider whether an order for setting down for trial for the present action should be made after the outcome of the trial in the related action(s), particularly if the judgment and findings might have bearing on the present action.
| (Marlene Ng)
|
| Deputy High Court Judge |
Mr Kenneth Chan and Ms Annie Lai, instructed by Fan, Wong & Tso, for the plaintiff
Mr Adrian Bell SC and Mr Alan Yung, instructed by Hastings & Co, for the 1st defendant
Schedule
Part A
Parts allowed
1.part marked in red (“Red Part”) in the heading
2.Red Part in paragraph (1)(a) of the prayer of reliefs;
3.Red Part in paragraph (2)(a) of the prayer of reliefs;
4.Red Part in paragraph (3)(a) of the prayer of reliefs;
5.Red part in paragraph (5)(c) of the prayer of reliefs;
6.“AND THE PLAINTIFF CLAIMS AGAINST THE 2ND DEFENDANT for the following:” and Red Parts in original paragraphs (7) and (8) of the prayer of reliefs;
7.“AND THE PLAINTIFF CLAIMS AGAINST THE 1STAND 2ND DEFENDANTS for the following:” in the prayer of reliefs.
Note:
Red Parts disallowed were:
(a) Red Part in paragraph 2(d) of the prayer of reliefs;
(b) Red Part in new paragraph (7) of the prayer of reliefs;
(c) Red Parts being renumbering of the original paragraphs (9)-(12) of the prayer of reliefs as new paragraphs (8)-(11).
Part B
Parts allowed
1.Red Part in the heading;
2.Red Part in the preamble in paragraph 9;
3.Red Parts in paragraph 9A(b), the preamble of paragraph 9A(c) and paragraphs 9A(c)(i)-(iii);
4.Red Part in the preamble of paragraph 9C (but not “PARTICULARS” and not paragraphs 9C(c)(i)-(ii));
5.Red Part in paragraph 9D(a);
6.Red Parts in paragraph 9E(b) and 9E(c);
7.Red Part in “If the Rental Properties had not been sold …… The damages are to be assessed.” in paragraph 9E(d) (but not the table on loss of rentals in paragraph 9E(d));
8.Red Part in the preamble in paragraph 10;
9.Red Part in paragraph 10A;
10. Red Part in paragraph 10D;
11. Red Part in paragraph 10E(d);
12. Red Part in the preamble in paragraph 12;
13. Red Part in paragraph 12A;
14. “B. Stan Company” and “200,000.00” in paragraph 12B (but not “4,414,200.00” in paragraph 12B);
15. replace “4,614,200.00” with “200,000.00” in paragraph 12B;
16. “C.” and “To be assessed” in paragraph 12C;
17. replace “No. 6 Sharp Street East, Hong Kong” with “Ground and 1st Floors, No. 6 Sharp Street East, Hong Kong” in paragraph 12C;
18. “D. 1st Floor, No. 15 Li Kwan Avenue Hong Kong” and “442,800.00” in paragraph 12D (but not “4,642.60” in paragraph 12D);
19. replace “447,442.60” with “442,800.00” in paragraph 12D;
20. Red Part in paragraph 12E;
21. “Total: To be assessed” in paragraph 12;
22. Red Part in original paragraph 12;
23. Red Part in paragraph 13;
24. “AND THE PLAINTIFF CLAIMS AGAINST THE 1STAND 2ND DEFENDANTS for the following:” in the prayer of reliefs where such phrase appears twice;
25. Red Parts in paragraph (1)(a)-(b), 2(b) and 6(c) of the prayer of reliefs;
26. “AND THE PLAINTIFF CLAIMS AGAINST THE 2ND DEFENDANT for the following:” and Red Parts in original paragraphs (7) and (8) of the prayer of reliefs;
27. Red Part in the original paragraph (9) of the prayer of reliefs.
Note:
Red Parts disallowed were:
(a) Red Part in paragraph 9A(d);
(a) Red Parts being “PARTICULARS” and sub-paragraphs 9C(c)(i)-(ii) in paragraph 9C(c);
(b) Red Part being table on loss of rentals in paragraph 9E(d);
(c) Red part in paragraph 10B;
(d) Red Part in paragraph 10C(c);
(e) Red Part in paragraph 10G;
(f) Red Parts in paragraphs (5)(c) and (6)(b)(i) of the prayer of reliefs;
(g) Red Part in the new paragraph (7) of the prayer of reliefs;
(h) Red Parts being renumbering of the original paragraphs (9)-(12) of the prayer of reliefs as new paragraphs (8)-(11).
[1] day following death of the Deceased
[2] 1 week after the grant of the LA
[3] see Ting Siu Wing v Chan Kwok Bun[2012] 5 HKC 87, 89
[4] see Hong Kong Civil Procedure 2015 (“HKCP 2015”) Vol 1 §6/2/2 at pp 74-75 and Nintendo Co Ltd v The World Camera and Radio Co Ltd [1999] 2 HKLRD 199
[5] see Order 18 rule 15(2) of the RHC
[6] see Moulin Global Eyecare Holdings Ltd v Olivia Lee Sin Mei(CFA) (2014) 17 HKCFAR 466, 481-482 (§28(b))
[7] see Moulin Global Eyecare Holdings Ltd (CFA) at p 481 (§24) (also Order 6 rule 2 and Order 18 rule 15 of the RHC)
[8] see HKCP2015 Vol 1 §17/1/7 at p 430 and Jacob and Goldrein, Pleadings: Principles and Practice (1990) p 106
[9] see Order 18 rule 7(1) of the RHC
[10] see Order 18 rule 15(1) of the RHC
[11] see Jacob and Goldrein, Pleadings: Principles and Practice (1990) pp 71-72
[12] see Jacob and Goldrein, Pleadings: Principles and Practice (1990) pp 47-49
[13] see Jacob and Goldrein, Pleadings: Principles and Practice (1990) p 63
[14] see Jacob and Goldrein, Pleadings: Principles and Practice (1990) pp 63-64
[15] see HKCP 2015 Vol 1 §18/9/1 at pp 407
[16] see HKCP 2015 Vol 1 §18/12/1 at pp 409-410 (see also Aktieselskabet Dansk Skibsfinansiring v Wheelock Marden & Co Ltd [1994] 2 HKC 264, 269-270)
[17] HCA815/2009, DHCJ Au-Yeung (as she then was) (unreported, 19 July 2011)
[18] HCA460/2011 (unreported, 19 October 2011) at §44-52
[19] see McGregor on Damages 19th ed §49-007 at p1935
[20] see Jacob and Goldrein, Pleadings: Principles and Practice (1990) p 87 and McGregor on Damages 19th ed §3-005 at p 23
[21] see McGregor on Damages 19th ed §49-012 at p.1938
[22] see Jacob and Goldrein, Pleadings: Principles and Practice (1990) p87 and Ratcliffe v Evans [1892] 2 QB 524, 528
[23] see McGregor on Damages 19th ed §49-018 at pp1941-1943
[24] see footnote 20 above
[25] see McGregor on Damages 19th ed §3-005 at p 25
[26] [1969] 3 All ER 479
[27] at p485
[28] [1950] 1 All ER 581
[29] at p 582
[30] see HKCP2015 Vol 2 §F1/35/10 at p 323
[31] see Paragon Finance plc v DB Thakerar & Co (a firm) [1999] 1 All ER 400, 404 and Li Tin Sang v Poon Bun Chak CACV119/2003 (unreported, 12 November 2003)
[32] see Moulin Global Eyecare Holdings Limited v Olivia Lee Sin Mei (CA) [2013] 1 HKLRD 744, 769 (§65) (allowed on appeal to the Court of Final Appeal in (2014) 17 HKCFAR 466 on other grounds)
[33] [1992] 1 HKLR 244, 475-476 and 485-486 (§§21-22) (see also McGee, Limitation Periods (7th ed) §23.007 at p 424 and HKCP2015 Vol 1 §20/8/7 at p 472)
[34] [2012] 4 HKLRD 474
[35] see Moulin Global Eyecare Holdings Limited (CFA) at p 479
[36] eg Mr Chan did not rely on or even refer to section 20(1)(b) of the LO
[37] [1965] 1 QB 232, 242-243
[38] HCA2741/1998, Recorder Paul Shieh SC (unreported, 5 January 2007) §20
[39] see HKCP2015 Vol 1 §15/1/12 at p 294
[40] DCCJ1766/2010, HHJ Leung (unreported, 14 November 2014) §39
[41] see Arta Properties Limited at §§24-34
[42] see Hydrocarbons Great Britain v Cammell Laird Shipbuilders Ltd 58 BLR 123
[43] see McGee, Limitation Period(7th ed) §23.009 at p 425
[44] see McGee, Limitation Period(7th ed) §22.048 at p 418
[45] (2014) 17 HKCFAR 466, 479-480 (§§18-19)
[46] at pp 481-482 (§§28-30)
[47] see Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1409, 1418 and Sun Focus Investment Ltd v Tang Shing Bor & anor [2012] 1 HKLRD 738, 748 (§35)
[48] [1999] 1 All ER 400, 418
[49] at §27 (see Paragon Finance plc at p 418)
[50] Mr Chan referred to Brickfield Properties Ltd vNewton[1971] 1 WLR 862 where an allegation of negligence against an architect in the design of a building was allowed after the expiry of the current period of limitation since it arises out of the same or substantially the same facts as an allegation of negligence against him in the supervision of the building even though it may thereby be adding a new cause of action, but in my view such case-specific consideration is not of much assistance
[51] see Arta Properties Limited at §§31-32
[52] HCA283/2009 (unreported, 6 February 2014) §§17-27
[53] see HKCP2015 Vol 1 §20/8/6 at pp 470-471 and Liang Jun Xian v Tsui Hin Chi & anor HCA2288/2007, Suffiad J (unreported, 26 January 2011) §47
[54] see Order 20 rule 8(1A) of the RHC
[55] see HKCP2015 Vol 1 §20/8/4 at p 470
[56] see HKCP2015 Vol 1 §§20/8/6 at pp 470-471
[57] see HKCP 2015 Vol 1 §20/8/16 at p 478
[58] §§23-24 (see also Nam Ching Wanv Tsun Un Pawn Shop also known as Tsun Yun Pawn Shop with Tang Yam Wan as trustee by Yeung Fook Mui and Tang Ying Ip (or Yip) as administrators of the estate of Tang Pui King alias Tang Yum (or Yam) Wan alias Tang Kin Cheung, deceased & ors HCA2151/2008 (unreported, 7 October 2014) §59)
[59] see Li Shiu To v Li Shiu Tsang & anor HCA416/2003 (unreported, 14 August 2012) §§14 and 16-17
[60] see Moulin Global Eyecare Holdings Ltd (CFA) at p 482 §§28 and 30
[61] see HKCP2015 Vol 1 §18/15/7 at p 430
[62] [2004] STC 1486, 1494 (cited in McGee, Limitation Periods (7th ed) §23.027 at pp 430-431)
[63] [1999] 2 HKLRD 199, 201
[64] [1980] 1 All ER 393, 405 (cited at p 247 in Extramoney & anor)
[65] 19th ed §3-001 at p 21
[66] §3-003 at p 22-23
[67] 19th ed§3-005 at pp 23-25
[68] November 20, 1998, Times Law Reports p 720
[69] HCA5511/1990, DHCJ Mitchell QC (unreported, 23 March 1993)
[70] see §4 above
[71] (7th ed) §14.010 at pp 266-267
[72] (2009) 12 HKCFAR 139, 148-150
[73] 19th ed §42-101 at pp 2099-2100
[74] §9C(a)-(b) of the 2nd ASoC Draft only referred to (a) G/F and 1/F 6SSE (and not the whole Sharp Street Ppty) and (b) the periods of wrongful use/occupation from 7 January 1983 to 31 December 1996 and 7 January 1983 to February 1988 respectively
[75] §10C(a)-(b) of the 2ndASoC Draft only referred to G/F and 1/F 6SSE
[76] see HKCP 2015 Vol 1 §20/8/10 at p 474
[77] 1928] 2 KB 336
[78] see Moulin Global Eyecare Holdings Ltd (CA) at pp 759-760 (§38)
[79] (1887) 19 QBD 394
[80] (1990) 7 Const LJ 205, 212
[81] [2005] 2 HKLRD 795, 799
[82] (2013) 17 HKCFAR 632
[83] (2013) 17 HKCFAR 663
[84] §27-34 at pp 645-646
[85] §21-23 at pp 672-673
[86] CACV108/2000 (unreported, 21 July 2000)
[87] see HKCP 2015 Vol 1 §20/8/10 at p 474
[88] see Subba Alvin also known as Gurung Yadap Chandra v Houng Kee (Asia) Limited & ors [2012] 4 HKLRD640, 653-654 at §29
[89] see Johnson Controls Hong Kong Ltd v Associated Engineers Ltd HCCT47/2011, Au J (unreported, 28 February 2012)