LEUNG FU MAN t/a LEUNG KING KEE v. WAT CHI HUNG t/a LEUNG KEE POULTRY CO
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DCCJ 6465/2003
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO. 6465 OF 2003
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BETWEEN | ||
| LEUNG FU MAN trading as LEUNG KING KEE | Plaintiff | |
and | ||
| WAT CHI HUNG trading as LEUNG KEE POULTRY COMPANY | Defendant | |
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Before: His Honour Judge Chow in Chambers
Date of Hearing: 3 October 2012
Date of Decision: 3 October 2012
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D E C I S I O N
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1. This is the defendant’s application to strike out the plaintiff’s amended statement of claim.
2. After the decision in relation to the application for re-amendment of the statement of claim handed down today, I only have to deal with the newly allowed re-re-amended statement of claim.
3. The first ground for striking out the claim is that the particulars in the claim are ambiguous. If that is the position, the matter can be resolved by the defendant asking for further and better particulars of the claim.
4. The second ground is the abuse of process and embarrassment caused by the plaintiff.
5. The claim commenced in November 1993. There was an aborted trial in January 2007.
6. In April 2008, the defendant wrote to the plaintiff, saying that the plaintiff had failed to take any steps to comply with the directions of Deputy District Judge R Cheung to re-amend the statement of claim since the making of the said order up to now. I have perused the judgment. I cannot find any order made in the judgment by Deputy District Judge R Cheung. Then, there followed a series of correspondences between the parties. On 5 March 2012, the defendant’s solicitors wrote to the plaintiff again, saying that they had failed to comply with the directions of Deputy District Judge R Cheung by failing to apply for the re-amendment of the statement of claim.
7. On 19 March 2012, the plaintiff’s solicitors wrote to the defence solicitors, saying that they were still taking instruction on the intended amendment of the statement of claim, and asked the defendant to withhold action for the next seven days. On 24 May this year, the defendant’s solicitors took out the present striking-out application, and then on 28 May 2012, the defendant took out the application for the re-amendment of the statement of claim.
8. I was referred to paragraph 18 of the case Liquidator of Wing Fai Construction Co Ltd (In Compulsory Liquidation) v Yip Kong Robert & Ors. That paragraph reads as follows:
“18. In relation to the Grovit v Doctor ground, the Respondents argued that the liquidators had been ‘warehousing’ their claims. I will later in this judgment deal with this particular aspect of abuse. The essence of the submission was that it would be an abuse to commence proceedings without any intention to bring them to a conclusion, while other proceedings or matters were being pursued instead. Kwan J declined to find any abuse along these lines. There was insufficient evidence to infer that the two-year period of inordinate and excusable delay evidenced an intention on the liquidators’ part not to bring the proceedings to a conclusion.”
In the present case, there is absolutely no evidence that the plaintiff commenced the present proceedings in November 1993 without any intention to bring them to a conclusion. It may be that the defendant can argue that after the aborted trial in January 2007, the plaintiff had no intention to proceed with the case, but the important point is on 19 March 2012, the plaintiff’s solicitors wrote to the defence solicitors, saying that they were still taking instruction in relation to amendment of the statement of claim. At that time, obviously, they had the intention to go ahead with the case.
9. Looking at the re-amendment of the statement of claim, I can see that the plaintiff’s solicitors or counsel must have spent a lot of time taking instructions from the plaintiff relating to the transactions, which cover a period of time, although, of course, some of the transactions were time-barred. At that time, they had the intention to go ahead with the case, and then on 24 May, the defendant took out the present proceedings for striking out. At that time, of course, no doubt the plaintiff had the intention to go ahead with these proceedings.
10. It is not the case absolutely that at the time of commencing the proceedings, they had no intention to go ahead with the case.
11. In the case of ChinaNonferrous Metals (Hong Kong) Finance Co Ltd (In Liquidation) & Anor v South-East Asia Investment Holding Company Limited & Anor, HCCL20/2002, decided on 31 July 2012, the court summarised the legal principles in the Wing Fai Construction case. Point 3 of the judgment at page 7 is relevant to this case:
“(3) A party’s commencement of proceedings, followed by delay, will not necessarily amount to an abuse justifying an order to strike out an action.”
That case applies here.
12. What is more important is during the time when the plaintiff is having an intention to proceed with the case, is the defendant entitled to strike it out, bearing in mind that for a period before the intention to proceed with the case, there was a period of substantial delay on the part of the plaintiff?
13. I judge that, in spite of the substantial delay, the court must take into account the intention of the plaintiff at the time the plaintiff took out the striking-out application. In this case, the plaintiff’s intention is clear. At that time, they had the intention to proceed and still is the position today. The case must be tried on merit of the substantive parties. A mere substantial delay is not sufficient to strike out the plaintiff’s statement of claim.
14. The defendant also referred to the loss of witnesses. This is the counter-claim taken out by the defendant. Even if there is no counter-claim, they still can expedite the trial by taking the necessary and relevant steps to force the plaintiff to commence the trial. This is more particularly so when there is a counter-claim. They cannot simply put all the blame to the plaintiff regarding the loss of witnesses.
15. As regarding another ground - the loss of documents - now that the claim is confined to those causes of action which are not time-barred, the defendant must have had those documents for the purpose of adducing them in the aborted trial in January 2007.
16. Due to the reasons stated above, I refuse the defendant’s application to strike out the plaintiff’s re-re-amended statement of claim.
(Discussion re costs)
17. The defendant is to bear the costs occasioned by this striking-out application. Certificate for counsel.
| (S. Chow) | |
| District Judge |
Mr Adrian Leung, instructed by Huen & Partners, for the plaintiff
Ms Sheena Chan, instructed by Wat & Co., for the defendant