SINO DATABASE LTD AND ANOTHER v. ABERDEEN BOAT CLUB LTD

DCCJ 3404/2021

[2025] HKDC 812

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3404 OF 2021

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DECISION

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Introduction

1.  On 3 March 2025, I handed down judgment after trial and I dismissed the Plaintiffs’ claim against ABC, the Defendant, in their entirety (see [2025] HKDC 353). By a summons dated 26 March 2025, the Plaintiffs seek leave to appeal against my judgment.

2.  This is my decision on the Plaintiff’s leave application. I shall continue to adopt the abbreviations used in the trial judgment.

Applicable Principles

3.  Section 63A(2) of the District Court Ordinance (Cap 336) stipulates as follows:

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that —

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

4.  It is well established that in respect of findings of fact, the Court of Appeal would only intervene when it is satisfied that the findings by the primary judge are plainly wrong: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §42; China Gold Finance Limited v CIL Holdings Limited CACV 11/2015 (unrep, 27 November 2015) at §11.

Intended Grounds of Appeal

5.  To recapitulate, Mr Chan, the 2^nd Plaintiff, is the beneficial owner of the 1^st Plaintiff, which owned the Yacht. They moored the Yacht in a mooring buoy provided by ABC, and the Yacht drifted away from the buoy during super typhoon Hato because the swivel connecting the Yacht and the buoy broke.

6.  In my judgment, I have essentially made the following findings:

(1)  The swivel in question was not provided by ABC. I took into account (a) the fact that the Mooring Agreement did not define “mooring” to include any swivel (see §§37-41); (b) the testimony of ABC’s witnesses who clearly stated that ABC would not provide swivels to members or hirers (see §§42-43); (c) the logical inference that the previous hirer of the subject buoy should have taken any swivels with him to his new mooring buoy (see §44); (d) the fact that Mr Chan’s captain was not called upon to give evidence (see §45); and (e) the Plaintiffs’ reliance on the Shipping and Port Control Regulations, which I considered to be irrelevant (see §46);

(2)  ABC was not responsible for the breaking of the swivel. The Plaintiffs submitted that the swivel broke because the mooring shackle was rusted, the design of the subject mooring was defective, or ABC failed to provide a two-buoy mooring (see §49). I rejected them as they were not pleaded (see §§50-51) and they were not substantiated by expert evidence (see §§52-58). In any event, I found that ABC did not replace the mooring buoys because it found them to be defective, and ABC was not contractually obligated to provide two-buoy mooring to the Plaintiffs (see §§56-57). Further, I held that ABC had taken sufficient precautionary measures (see §§60-64);

(3)  Irrespective of whether ABC was under a duty to timely inform the Plaintiffs that the Yacht broke free, I was not satisfied that a rescue operation could have been mounted if the Plaintiffs had known about the accident earlier given the extreme weather condition (see §§65-69);

(4)  The Plaintiffs did not adduce sufficient evidence to prove the quantum of damages (see §71).

7.  On 20 March 2025, the Plaintiffs lodged a bilingual document titled “Application for Leave to Appeal”, which was referred to in their summons dated 26 March 2025. I take that the Plaintiffs have set out their intended grounds of appeal in the said document, and Mr. Simon Westbrook SC for ABC also prepared his written submissions on that basis.

8.  First, the Plaintiffs contended that if correctly interpreted, the Mooring Agreement did not require the hirers to provide their own swivels. The Mooring Agreement was in any event unenforceable, as it was onerous in imposing significant obligations on the hirers. The New Mooring Agreement, which was not executed, should not be considered. (See section A1 of the Application for Leave to Appeal.)

9.  These arguments have no merits. The Mooring Agreement was clear in stating that insofar as the mooring buoy was concerned, ABC would only provide the anchor block, the floating buoy and the chain that connected the anchor block and the floating buoy. The agreement was not lengthy or complicated and ABC’s staff explained to Mr Chan its key terms prior to execution, so it was enforceable. Putting aside their binding effect, the agreements (both the Mooring Agreement and the New Mooring Agreement) shed light on the actual practice of ABC of not providing swivels to members.

10.  Second, the Plaintiffs argued that I erred in holding that ABC was not obligated under the Mooring Agreement to provide a two-buoy mooring to them (see section A2 of the Application for Leave to Appeal). As held in the judgment, this was not even a pleaded complaint. There was no evidence that swing moorings were inherently unsafe. The facts of the case were clear that the Plaintiffs rented a swing mooring from ABC.

11.  Third, the Plaintiffs submitted that I erred in finding that ABC did not owe a duty of care to them (see section B of the Application for Leave to Appeal). This submission was totally misconceived. As I stated in §33 of the judgment, Mr Westbrook SC accepted that ABC owed a duty of care under both contract and tort, and I proceeded on that basis. If the Plaintiffs’ submission was really that ABC breached the duty of care by not replacing the rusty shackle or by having a defective mooring design, then I already held that these were not pleaded complaints and there was no expert evidence to substantiate the complaints that the swivel broke because of the rust or the mooring design.

12.  Fourth, the Plaintiffs said I erred in weighing the evidence (see section C of the Application for Leave to Appeal), in that I gave excessive weight to the hearsay evidence of ABC’s coxswain (who passed away before trial and who, according to another witness of ABC, inspected the mooring before it was handed over to the Plaintiffs) and that I drew an adverse inference against the Plaintiffs for not calling their captain as a witness when he actually passed away before the trial too. There is no force with these arguments:

(1)  For the first point, the Plaintiffs misunderstood §44 of my judgment; there I only considered Ms. Jennifer Li’s evidence that she instructed the coxswain to inspect the subject mooring and I did not take into account anything the coxswain might have said;

(2)  As to the second point, the Plaintiffs acknowledged that they did not inform me that their captain had passed away, even though the role of the captain was investigated during cross examination and I expressly enquired with Mr. Westbrook SC as to what inferences I was invited to draw from the fact that the captain was not called. The Plaintiffs could offer no satisfactory reason why they did not simply clarify that the captain was deceased, and even for the purpose of this hearing, there was still no application before me for the Plaintiffs to adduce evidence relating to the death of the captain;

(3)  In any event, it is clear from §§37-48 of the judgment that I considered various matters before concluding that ABC did not provide the swivel, and I gave particular weight to the Mooring Agreement which was contemporaneous documentation. I also made it clear in §48 of the judgment that I came to my conclusion having taken into account those various matters “both individually and cumulatively”. The adverse inference was just one minor matter; with or without it my conclusion would have been the same.

13.  Fifth, the Plaintiffs argued that I erred in interpreting section 48(6) of the Shipping and Port Control Regulations (see section D of the Application for Leave to Appeal). I disagree. The statue did not expressly say the owner of a mooring had to maintain a swivel like the one in this case in good condition. And as held in my judgment, ABC’s obligations vis-à-vis the government and its obligations vis-à-vis the Plaintiffs are not the same.

14.  Sixth, the Plaintiffs said I erred in not giving weight to the industry practice and thus erred in my conclusion that ABC did not supply the swivel in question and that ABC was not in breach for providing a swing mooring. Relatedly, the Plaintiffs contended that I should not have excluded the evidence relating to the practice of another boat club (i.e. the Hebe Haven Yacht Club) (see sections E1 and E2 of the Application for Leave to Appeal). These arguments must be rejected. There was no evidence on “industry practice” as to whether swing moorings were provided by other clubs. Whether the Hebe Haven Yacht Club provided swivels to its hirers does not amount to “industry practice”, and one club’s practice has no bearing on another club’s practice. There is also absolutely no justification for the Plaintiffs to try to adduce further evidence at the eleventh hour.

15.  Seventh, the Plaintiffs said I erred in finding that ABC carried out sufficient inspections to the moorings when the fact was that the relevant shackle was heavily rusted and that the industry practice required more thorough inspections (see section E3 of the Application for Leave to Appeal). As held in the judgment, the rusting of the shackle had nothing to do with the incident, and there was no evidence to support the Plaintiffs’ suggested inspection method, let alone it being the “industry practice”.

16.  Eighth, the Plaintiffs argued that I erred in saying that they failed in proving why the Yacht broke free, when the Defendant admitted that the broken swivel was the cause (see section E4 of the Application for Leave to Appeal). This is a mischaracterisation of the Defendant’s case. There was no dispute that the Yacht broke free because the swivel broke; what ABC contended was that it did not supply the subject swivel to the Plaintiffs, which I found to be the case as a matter of fact.

17.  Ninth, the Plaintiffs said I should have held that ABC breached its duty in monitoring the Yacht (see section F of the Application for Leave to Appeal). I found that irrespective of whether ABC was obligated to monitor the Yacht during extreme weather conditions and to inform the Plaintiffs if the Yacht broke free, no operation could have been deployed to rescue the Yacht.

18.  Finally, the Plaintiffs complained that I should not have conducted the trial in English (see section G of the Application for Leave to Appeal). I have explained in §28 of the judgment why I chose English as the trial language, and the Plaintiffs could not pinpoint any errors with my decision. It is noteworthy that for the present application, the Plaintiffs managed to compile the Application for Leave to Appeal in English, which was a 28-page document comprising 72 paragraphs.

19.  For the aforesaid reasons, I do not consider that the Plaintiffs’ intended appeal has any prospect of success, not to mention reasonable prospect. There is also no reason in the interests of justice why the intended appeal should be heard.

Conclusion

20.  I hereby dismiss the Plaintiffs’ summons dated 26 March 2025. I make an order nisi that the Plaintiffs do pay ABC the costs of the summons, to be taxed if not agreed with certificate for counsel.

The 1^st and 2^nd Plaintiffs appeared in person

Mr. Simon Westbrook SC, instructed by Messrs. Fairbairn Catley Low & Kong, for the Defendant

DCCJ 3404/2021

[2025] HKDC 353

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3404 OF 2021

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JUDGMENT

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Introduction

1.  The 2^nd Plaintiff claims to be the beneficial owner of the 1^st Plaintiff, which in turn was the owner of a yacht named Christine Lorraine (“Yacht”). The 2^nd Plaintiff moored the Yacht in a mooring buoy allocated by the Defendant.

2.  In August 2017, the Yacht drifted away from the mooring buoy and grounded ashore. The Yacht was found to be beyond repair and treated as total loss. The 1^st and 2^nd Plaintiffs now claim against the Defendant for breach of duties in relation to the incident.

Background

3.  The Defendant operates the Aberdeen Boat Club (“ABC”), which is a recreational boating and sailing club, on 20 Shum Wan Road, Aberdeen, Hong Kong. ABC provides a wide range of facilities for yacht and cruiser owners, with moorings available for its members. ABC maintains moorings both in the Aberdeen typhoon shelter and in the sea areas to the north of Middle Island.

4.  The 2^nd Plaintiff (“Mr Chan”) joined as a member of ABC on 1 August 2011. On 16 March 2015, Mr Chan and ABC entered into a written agreement titled “Allocated Mooring / Space Agreement” pursuant to which ABC agreed to let and Mr Chan agreed to hire such mooring as allocated by ABC in consideration of a monthly rental of HK$1,481 to be paid by him (“Mooring Agreement”).

5.  ABC allocated mooring no D12 to Mr Chan for the mooring of the Yacht. Mooring no D12 has at all material times been situated in the sea areas near Middle Island and it comprises one buoy, which is known as swing mooring as the yacht may swing around the buoy. This is unlike some other moorings in the Aberdeen typhoon shelter which consist of two buoys, with each buoy connecting to the fore and aft of the yacht respectively, such that the yacht would not swing.

6.  Mr Chan and ABC subsequently entered into another agreement titled “Renewal of Allocated Mooring / Space Agreement”, which apparently was for the purpose of renewing the Mooring Agreement for the period from 1 July 2015 to 30 June 2016. The renewal agreement expressly stipulated that ABC allocated mooring no D12 to Mr Chan for him to moor the Yacht.

7.  In May or June 2016, ABC sent another renewal agreement to Mr Chan with a view to further renewing the Mooring Agreement to 31 December 2016. Mr Chan did not respond to it and in any event ABC treated the Mooring Agreement as having been renewed to 31 December 2016.

8.  By a letter dated 16 December 2016, ABC informed Mr Chan that the extant mooring agreement would expire on 31 December 2016 and requested him to execute a new mooring agreement on or before 20 January 2017 (“New Mooring Agreement”), otherwise the mooring agreement would terminate on 20 January 2017 and the Yacht would have to be vacated from mooring no D12.

9.  Having heard no response from Mr Chan, ABC by an email dated 22 June 2017 requested Mr Chan to sign the New Mooring Agreement and to provide some supporting documents, failing that the mooring agreement between ABC and Mr Chan would terminate with immediate effect and the Yacht would need to be removed within 14 days.

10.  There was still no response from Mr Chan. Consequently, on 7 July 2017, ABC by letter terminated the mooring agreement with immediate effect and demanded Mr Chan to remove the Yacht from the mooring by 19 July 2017. By another email dated 31 July 2017, ABC said to Mr Chan that the Yacht was still in mooring no D12, and enquired when Mr Chan would remove it.

11.  Mr Chan explained that he was not aware of ABC’s request for him to enter into a further renewal agreement or the New Mooring Agreement. Nevertheless, he continued to pay for the mooring rental including the rental for August 2017 in the sum of HK$1,630.

12.  A super typhoon called Hato formed as a tropical depression over the western North Pacific on the night of 20 August 2017 and entered the South China Sea on 22 August 2017. The Hong Kong Observatory issued the No 1 Standby Signal in the morning of 22 August 2017 and issued the No 3 Strong Wind Signal in the evening. No 9 Increasing Gale or Storm Signal was issued in early morning next day, and No 10 Hurricane Signal was issued at 9:10am on 23 August 2017.

13.  On 23 August 2017, during super typhoon Hato, the Yacht was blown off mooring D12, drifted away and grounded ashore at the western side of Deep Water Bay. The Marine Department informed Mr Chan of the incident in the morning of 24 August 2017, and it issued a removal order for Mr Chan to arrange for wreck removal of the Yacht. At 3:52pm on 24 August 2017, ABC also emailed Mr Chan to inform him that the Yacht broke from the mooring.

14.  The Plaintiffs engaged a contractor named Kwong Sun Transportation and Engineering Ltd to remove the Yacht, and the wreck was completely removed by 14 November 2017. It was subsequently dismantled and dumped.

15.  A swing mooring of ABC at the material times comprised a buoy floating on the sea. Inside the buoy there was a D-shaped shackle with a pin on top and a chain attached to it at the bottom, and it is known as the mooring shackle. The chain was then connected to an anchor block lying on the sea bed. A typical swing mooring would operate as follows. The yacht would need to have mooring ropes. At the end of the ropes there would be one or more D-shaped shackles, which would be connected to a swinging metal device called a swivel on one end, and the other end of the swivel would be connected to another D-shaped shackle, which would serve to connect the swivel with the mooring shackle inside the buoy.

16.  There is no dispute between the parties that at the material times, the Yacht had three to four mooring ropes with two D-shaped shackles at their end, and there was a swivel connecting these two shackles directly to the mooring shackle. In other words, there was no shackle connecting the swivel with the mooring shackle.

17.  The Plaintiffs engaged a Mr Bruce Hung from Marinasia Limited to compile survey report regarding the shipwrecking incident. Mr Hung noted that the swivel connecting the Yacht to mooring no D12 was broken whereas the mooring ropes on the Yacht were in good order, so he considered that the main cause of the incident was the failure of the swivel metal ring. Despite there being no leave granted for the Plaintiffs to adduce expert evidence, ABC agreed with Mr Hung’s view that the Yacht drifted away during super typhoon Hato because the swivel was broken.

Procedural Matters

18.  After the parties filed pleadings, on 7 September 2022 Master M Soong (as Registrar M Soong then was) ordered the Plaintiffs to file and serve a statement of damages by 21 September 2022, and directed the Plaintiffs to take out an application for expert evidence directions by 19 October 2022, failing that they would be treated as having no intention to adduce expert evidence. The Plaintiffs have not submitted any statement of damages and did not apply for expert evidence directions by the stipulated deadline.

19.  On 1 March 2024, Master Michael Lok provisionally struck out Mr Chan’s claims as he was absent from the case management conference; the 1^st Plaintiff’s claims remained intact as its representative attended the hearing. On 31 October 2024, His Honour Judge Alan Kwong restored Mr Chan’s claims, and the pre-trial review was conducted before the learned Judge on 12 December 2024.

20.  After the pre-trial review, Mr Chan took out three summonses in January 2025, seeking leave to among others amend the writ of summons and statement of claim, adduce a supplemental witness statement of his own, adduce an expert report, and seek specific discovery against ABC. With no objection from ABC, His Honour Judge Alan Kwong granted leave for Mr Chan to amend the writ of summons and statement of claim and to file his supplemental witness statement. The learned Judge dismissed Mr Chan’s other applications, and he in particular considered that Mr Chan’s delay in applying to adduce expert evidence was inordinate and inexcusable; see the written decision in [2025] HKDC 154. Mr Chan has not appealed against the said decision.

21.  Against the above procedural background, Mr Chan sought to produce yet further evidence by filing an affirmation on 14 February 2025 (ie right before the trial commenced on 17 February 2025), to which he exhibited a tape recording of his conversation with a staff from the Hebe Haven Yacht Club. Since Mr Chan did not take out any application, and his attempt to produce further evidence was made extremely late, I told Mr Chan I would not allow him to rely on the contents of the tape recording.

22.  In any event, such purported evidence was of no probative value. As will become clear, one major dispute in this case is whether ABC provided Mr Chan with the swivel, which was broken during super typhoon Hato causing the Yacht to drift away. Mr Chan sought to prove that ABC did provide the swivel to him by saying that another yacht club would also provide swivels to its members. This however is a purely factual question, and what another yacht club does has no bearing on the actual practice of ABC.

23.  In their written opening and closing submissions, the Plaintiffs attached some extra documents not previously disclosed. As there was no application to adduce them as evidence, I would disregard them.

24.  On the other hand, ABC also took out a late interlocutory application before trial. On 28 January 2025, ABC through its solicitors indicated by correspondence that it would crave indulgence for one of its witnesses, Ms Jennifer Li, to give evidence by way of video-conferencing facilities (“VCF”). ABC took out the summons only on 12 February 2025, returnable on the first day of the trial on 17 February 2025.

25.  In the supporting affirmation, ABC explained that at the time the case was set down for trial, Ms Li was ABC’s employee so there would be no issue for Ms Li to testify in court. However, Ms Li left ABC’s employment on 22 November 2024 and took up employment with B and G Sportz Limited as the team administrator of an electric raceboat team, and she was assigned to travel with the team to Doda, Qatar from 17 to 23 February 2025 to participate in the UIM E1 World Championship series. ABC learned from Ms Li on 16 January 2025 that her assignment would render it implausible for her to attend the trial and give evidence in court.

26.  The principles and considerations applicable to an application for giving evidence by VCF have been summarized by Anthony Chan J in Re Nobility School Ltd[2020] HKCFI 891 at §9. In gist:-

(1)  The giving of evidence by VCF is an exception.

(2)  The starting point is that proceedings are conducted in court. This is more important when it comes to a trial.

(3)  Sound reason is required to justify a departure from the starting point.

(4)  The solemnity of court proceedings and its atmosphere is highly important in the taking of evidence.

(5)  The court may be more disposed to exercise its discretion to allow evidence by VCF in respect of technical or purely factual evidence which involves no serious issue on credibility or relatively unimportant evidence.

(6)  Where the credibility of the witness is seriously contested, it is important for the witness to be examined under the solemn atmosphere of the court.

(7)  Costs and convenience may be important considerations which the court will have to weigh in the determination of the application.

(8)  Ultimately, it is a matter of judgment of the court choosing the course best calculated to achieve a just result by taking into account all the material considerations, including whether the witness is capable of attending the proceedings, any prejudice to the other party, the underlying objectives, any delay to the proceedings and practical considerations like the availability of the facilities.

27.  At the commencement of the trial, Mr Simon Westbrook SC, leading counsel for ABC, informed me that both Plaintiffs consented to the VCF application. Be that as it may, I explained to the Plaintiffs that it would be exceptional for a witness to give evidence by VCF and the norm would be for the witness to physically testify in the court room. Having heard my explanation, both Plaintiffs maintained that they consented to the application. In light of the Plaintiffs’ stance, and considering that Ms Li’s evidence would be relatively unimportant and that there was a good explanation for her inability to physically attend the trial, I granted the VCF application and I reserved the question of costs. Considering that it was ABC who sought the court’s indulgence and that the Plaintiffs reasonably acceded to the application, I will now make a costs order nisi that ABC do pay the Plaintiffs’ costs of the VCF application.

28.  Another procedural matter was the Plaintiffs’ request to have the trial conducted in Chinese, as the 1^st Plaintiff’s representative spoke Mandarin whereas Mr Chan himself spoke Cantonese. Having considered their request, I decided to conduct the trial in English, as the pleadings (including the Plaintiffs’ amended statement of claim and reply) and most of the contemporaneous documents (including the various mooring agreements) were in English. Throughout the trial, each of the 1^st Plaintiff’s representative and Mr Chan was assisted by a court interpreter, and I also indicated to them that I was conversant in both Mandarin and Cantonese such that their submissions would not be lost in translation.

Issues in Dispute

29.  In their amended statement of claim, the Plaintiffs pleaded that ABC was in breach of its duties in the following manner:-

(1)  In breach of the Mooring Agreement, ABC failed to install, supply and/or maintain adequate and sufficient tackles, mooring and associated components for the Yacht.

(2)  ABC failed to advise the Plaintiffs to take precautionary measures to secure the Yacht and to remove the Yacht from its mooring in anticipation of super typhoon Hato.

(3)  ABC failed to notify the Plaintiffs in time for them to render rescue operation when the Yacht started to drift away from its mooring because ABC did not monitor the moorings.

30.  The Plaintiffs claimed monetary compensation in the sum of HK$1,700,000, which they said to be the market value of the Yacht at the time of the incident.

31.  ABC’s defence, as set out in its amended defence, can be briefly stated as follows:-

(1)  Under both the Mooring Agreement and the New Mooring Agreement, it was the responsibility of the hirer to provide adequate and sufficient lines and other equipment to secure the yachts to the mooring. The broken swivel in question was not provided by ABC. Instead, it belonged to the Plaintiffs.

(2)  The Mooring Agreement was renewed once up to 30 June 2016. Thereafter Mr Chan did not enter into any renewal agreements or the New Mooring Agreement. As a result, ABC terminated the mooring agreement and demanded the Yacht be removed from the mooring by 19 July 2017. At the time of the shipwrecking incident on 23 August 2017, there was no contractual relationship between the Plaintiffs and ABC.

(3)  ABC carried out sufficient precautionary measures, including inspecting and maintain the moorings, as well as issuing guidelines to members and mooring users.

32.  While not pleaded in the amended defence, ABC mentioned in evidence two exemption clauses in the Mooring Agreement, which stipulated as follows:-

(1)  Clause 7(f): “Neither the Club nor its officers, employees, servants or agents shall be liable for any breach of this Agreement or terms hereof, nor for any act, omission or negligence. Neither the Club nor its officers, employees, servants or agents make or shall be deemed to have made any representation as to the safety, adequacy or sufficiency of the Allocated Mooring or Allocated Space or any parts thereof or as to the positioning, the safety, adequacy or sufficiency of any terms or conditions imposed by the Club pursuant to Clause 2 or otherwise under this Agreement.”

(2)  Clause 7(g): “The Hirer confirms that he is liable to the Club for all costs incurred pursuant to action taken by the Club in connection with the moving or removal of the Vessel and the Hirer further confirms that the has no claim against the Club, its officers, employees, servants or agents in connection therewith. The Hirer further indemnifies and will keep the Club, its officers, employees, servants and agents fully indemnified against any and all damages, costs, disbursements or other expense which the Club, its officers, employees, servants or agents may incur as a result of any claim or demand made upon them or any civil or other proceedings or action instituted against them or any of them in relation to the Vessel, the Allocated Mooring or the Allocated Space or any vessel kept at the Allocated Mooring or Allocated Space or in relation to any act or omission by the Hirer.”

33.  Mr Westbrook SC has, with exemplary fairness, in his written opening submissions conceded that there was an implied continuing mooring agreement between the parties and that in any event ABC would owe a concurrent duty of care in tort to the Plaintiffs. He also indicated that for the purpose of this trial, ABC would not rely on the aforesaid exemption clauses.

34.  In light of the stance of the parties, it is clear to me that there are only the following issues to be determined:-

(1)  Whose responsibility was it to provide and maintain the swivel?

(2)  Regardless of the answer to (1) above, was the breaking of the swivel attributable to the act or omission of ABC?

(3)  Regardless of the answers to (1) and (2) above, was ABC responsible for the wrecking of the Yacht?

(4)  If ABC is liable, what is the quantum of damages?

Issue (1) – The Swivel

35.  The cases of Mr Chan and ABC are diametrically opposite, with each claiming that the other party provided the swivel and bore the responsibility of maintaining it. Mr Chan claimed that the swivel in question was already attached to mooring no D12 when he first moored the Yacht there, whereas ABC contended that the members would purchase their own swivels and shackles for securing their yachts to the mooring.

36.  In resolving the factual dispute, I bear in mind that where there is a host of contemporaneous documentation, such documentation must assume a special importance. The truth can best be tested by reference to contemporaneous documentation where it exists, as well as to inherent improbabilities having regard to all the facts: Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corp Ltd [2007] 3 HKLRD 439 at §135; Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513 at §53.

37.  The most important contemporaneous documentation in this regard is the Mooring Agreement. Clause 1 of the agreement defines various terms including mooring, it is defined to mean “(i) the mooring anchor block or blocks; (ii) the mooring buoy or buoys connected to it and (iii) the chain and/or other attachment between the mooring anchor block or blocks and the mooring buoy or buoys”.

38.  Further, clause 3 of the Mooring Agreement sets out the parties’ respective responsibility relating to mooring and securing a vessel to the mooring. The following sub-clauses are particularly relevant:-

(1)  Clause 3(a): “The Hirer shall be responsible for keeping the two Mooring buoys of the Allocated Mooring in the Typhoon Shelter securely attached together at all times throughout the duration of this agreement. The Club shall be responsible for the supply and maintenance of the mooring anchor block or blocks, the mooring buoy or buoys connected to it and the chain and/or other attachment between the mooring anchor block or blocks and the mooring buoy or buoys of both 2-point typhoon shelter moorings and swinging moorings.”

(2)  Clause 3(c): “It is the responsibility of the Hirer to provide adequate and sufficient lines or other tackle to secure the Vessel to the Allocated Mooring;”

(3)  Clause 3(d): “The Club shall have the right, but shall be under no obligation, to replace any line or tackle, which the Club may, in its absolute discretion, consider to be inadequate without any prior notice to the Hirer.”

(4)  Clause 3(f): “The Club shall not be liable for any damage caused to or by the Vessel, whether it has replaced any line or tackle or not.”

39.  Mr Chan argued that the term “swivel” was not mentioned at all in the Mooring Agreement. Nevertheless, it is clear from the above provisions in the Mooring Agreement that the mooring provided by ABC includes only the anchor block on the sea bed, the buoy floating on water and the chain that connects the anchor block and the buoy, though ABC accepted during the trial that the mooring shackle in the buoy would also be ABC’s property. Members, including Mr Chan, bear the responsibility to provide lines and tackles to secure their yachts to the mooring. ABC has the right but not the obligation to replace any lines or tackles, and shall not be liable for any damage whether it has replaced any lines or tackles. While the term “tackles” is not defined, it is clear that it refers to any shackles or swivels that connect the ropes or lines of the yachts to the mooring.

40.  The New Mooring Agreement contains provisions similar to those in the Mooring Agreement. But instead of defining mooring, it defines the term tackle to mean “the equipment of the Mooring comprising (i) the mooring anchor block or blocks; (ii) the mooring buoy or buoys connected to it and (iii) the chain and/or other attachment between the mooring anchor block or blocks and the mooring buoy or buoys”. While the New Mooring Agreement is not executed by the parties, it sheds light on ABC’s continued practice of not providing shackles and swivels to its members.

41.  Mr Chan said that he did not understand the terms of the Mooring Agreement, which was in English, and nobody from ABC explained to him those terms as he signed the agreement in his own place and then sent it back to ABC. Ms Jennifer Li, who used to be an assistant marine and sailing manager of ABC, refuted Mr Chan’s version by saying that Mr Chan signed the agreement in the ABC premises in her presence. She said she remembered it vividly because prior to that she emailed the agreement to Mr Chan’s assistant, who told her Mr Chan would go to ABC to sign the agreement. Eventually, Ms Li met Mr Chan in the café in ABC and Mr Chan signed the agreement after she explained some key terms of the agreement to him (she did not suggest that she explained and translated each and every clause of the agreement to Mr Chan). Whether Mr Chan understood the terms of the Mooring Agreement is beside the point. Firstly, having signed the Mooring Agreement, he was bound by it even if he did not understand the terms: see Ming Shiu Chung v Ming Shiu Sum (2006) 9 HKCFAR 334 at §§83-84. Secondly, putting aside the binding effect the Mooring Agreement, the agreement is still strong corroborating evidence that ABC would not provide swivels to members.

42.  I have considered the possibility that ABC, despite disavowing any obligations to provide shackles and swivels to members by the mooring agreement, would as a matter of fact provide such tackles to members. However, the evidence obviously does not support such a possibility. During cross examination, Mr Alex Johnston, a marine services manager of ABC, unequivocally said that ABC would not provide swivels to members and would not maintain any inventory of swivels for members’ use. Ms Li also said that throughout the years when she worked in ABC, ABC did not provide swivels to members.

43.  Mr Chan highlighted an apparent inconsistency between the evidence of Mr Johnston and Ms Li. During cross examination, Mr Johnston said whenever there were members who newly moored their yachts to the ABC moorings, he would advise them to purchase their own swivels and shackles, and he would recommend vendors such as a Ming Kee in Ap Lei Chau to members. Ms Li, however, said she did not provide such advice to Mr Chan when Mr Chan signed the Mooring Agreement in her presence. I do not think this constitutes an inconsistency. After all, it was March 2015 when Ms Li presented the Mooring Agreement for Mr Chan to sign, and at that point of time Mr Johnston had not joined ABC yet. Their evidence only shows that they may have different practice towards what they may advise members, and certainly does not go to support Mr Chan’s case that ABC would provide the swivels to members. Another inconsistency in Mr Johnston and Ms Li’s evidence is that Mr Johnston said ABC would only provide a mooring with mooring ropes attached for its visitor moorings but not any other moorings, whereas Ms Li said there was only one visitor mooring in ABC and visitors would need to supply their own mooring ropes and tackles. While the two versions cannot really be reconciled, they do not lend support to the Plaintiffs’ suggestion that ABC would provide swivels to members.

44.  I have also considered the possibility, as contended by Mr Chan, that the swivel in question was left behind by the previous hirer and ABC let Mr Chan use it. In this regard, I accept Ms Li’s evidence that after the previous hirer, a Mr Stephen Chow, removed his yacht from mooring no D12, she instructed a marine coxswain (who passed away in February 2020 and could not be ABC’s witness) to inspect the mooring to ensure that it was clear of any shackles and swivels before it was handed over to Mr Chan. Ms Li also said that Mr Stephen Chow moved his yacht to mooring no D20, so he would have taken his shackles and swivels with him and would not leave them behind in mooring no D12. I find this to be a reasonable and logical inference.

45.  On the other hand, while Mr Chan said his captain was responsible for mooring the Yacht to mooring no D12, he somehow did not call his captain to be a witness. On the Plaintiffs’ side, Mr Chan and two other witnesses (a Mr Hung Chi Sing and a Ms Lam Ka Man, both being directors of the 1^st Plaintiff) have filed witness statements, but eventually only Mr Chan himself testified in court. The Yacht’s captain, who would be expected to give first hand evidence on the mooring facilities in mooring no D12, was inexplicably never intended to be a witness. While I do not have to draw adverse inferences against the Plaintiffs for failing to ask Mr Hung and Ms Lam to testify in court, I would draw an adverse inference against the Plaintiffs that the Yacht captain’s evidence would have been unfavourable to the Plaintiffs: see Telings International Hong Kong Limited v John Ho CACV 10/2010 (unreported, 22 October 2010) at §§79-80.

46.  The Plaintiffs also referred to section 48 of the Shipping and Port Control Regulations (Cap 313A) to argue that the statue imposed the obligation on ABC to maintain the swivel. In particular, section 48(6) provides that “A private mooring and the chains, shackles and other accessories shall be of such nature and construction as the Director may direct and the owner of the mooring shall keep and maintain the mooring and its accessories in the approved position and in good condition.” I consider this to be irrelevant. It is one thing to say ABC is required by the Government to maintain the moorings and its accessories, but it is another matter for ABC to agree with its members as to how they should divide up the responsibility of maintaining the moorings and the accessories.

47.  Lastly, Mr Chan relied on an English authority The Quercus [1943] P 96 to contend that as a matter of law the swivel is part of the mooring and it was ABC’s responsibility to inspect and maintain the swivel. In that case, the plaintiff’s yacht broke adrift from the defendants’ moorings, and the accident was caused by the mooring chain parting through kinking, and the kinking was caused or contributed to by the failure of a swivel to work effectively owing to rust and marine growth. That case only establishes that a mooring provider may be obliged to exercise reasonable care and skill to maintain the efficiency of the mooring, and it may be a breach of that duty if the mooring provider does not carry out sufficient inspections of the mooring. However, that case does not and cannot possibly stand for a sweeping proposition that a swivel must necessarily be provided by the mooring provider; this is not to mention that the “swivel” in The Quercus is apparently not the same swivel in this present case.

48.  Having taken into account the above matters, both individually and cumulatively, I find it as a matter of fact that the swivel in question was not provided by ABC to Mr Chan. Rather, it was Mr Chan who provided his own swivel. Under the Mooring Agreement, it was the responsibility of Mr Chan to maintain his own swivel. Thus, ABC is not liable for having provided a faulty swivel to Mr Chan.

Issue 2 – Breaking of the Swivel

49.  As a fallback, the Plaintiffs argued during the course of the trial that even if the swivel was provided by him, ABC is still liable for the breaking of the swivel because:-

(1)  The mooring shackle of mooring no D12 was heavily rusted, which increased the friction between it and the swivel and caused the swivel to break.

(2)  The design of mooring no D12 was defective because the D-shaped mooring shackle did not leave sufficient room for the swivel to move around.

(3)  In breach of the Mooring Agreement, ABC did not provide Mr Chan with a two-buoy mooring.

50.  I do not think the Plaintiffs should be allowed to advance these arguments. These are not their pleaded complaints. Their pleaded complaint, insofar as the mooring facility is concerned, is that ABC “failed to install and/or supply and/or maintain adequate and sufficient tackles, mooring and associated components for the Yacht”. No further particulars have been given. While I can accept that the plea is wide enough to cover their complaint that ABC did not provide an appropriate swivel (as analysed under issue 1 above), the plea cannot be stretched so much as to cover the complaints about the rusting of the shackle, the design of the mooring and ABC’s alleged failure to provide a two-buoy mooring.

51.  In this connection, the Court of Final Appeal has repeatedly emphasized the importance of pleadings. In Kwok Chin Wing v 21 Holdings Limited (2013) 16 HKCFAR 663 at §21, Ma CJ stated that the basic objective of pleadings was fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues. It was the pleadings that would define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses were involved, it would be the pleaded issues that define the scope of the evidence, and not the other way round. It would not be acceptable for unpleaded issues to be raised out of the evidence which was to be or has been adduced. In Sinoearn International Ltd v Hyundai-CCECC Joint Venture (2013) 16 HKCFAR 632 at §§30-34, Chan PJ stated that pleadings were not mere formalities. They imposed a necessary discipline and were fundamental to enabling every procedural facet of the adversarial system to operate fairly. The other party was entitled to know from a clear pleading what was the entire case he had to meet so he could decide whether particulars should be sought, how he should plead in response, what discovery he was entitled to, what evidence he should adduce and what points of law should be taken.

52.  This disposes of the three complaints of the Plaintiffs. For the sake of completeness, I shall say that the Plaintiffs’ complaints about the rusting shackle, the design of the mooring and the non-provision of a two-buoy mooring are bound to fail. The Plaintiffs bear the burden of proof, but they have not adduced any expert evidence even though they were specifically reminded by Master M Soong to take out an application for expert evidence directions. Even Mr Chan’s belated application for expert evidence before His Honour Judge Alan Kwong related only to the issue of the rusting pin and had nothing to do with the mooring design or any inherent risk with a swing mooring.

53.  Mr Chan suggested that it was only common sense that a rusting pin would increase the friction when the pin was rubbed against the swivel. I do not agree. How the rust may affect the friction between the pin and the swivel and how such change in friction may cause the swivel to break are matters of expert evidence. With no expert evidence adduced, the Plaintiffs have plainly failed to discharge their burden in proving that the rusting pin caused the swivel to break.

54.  As to the design of mooring no D12, Mr Chan complained that it was inferior to the design of other moorings such as moorings nos. D11 and D20, which have a U-shaped shackle on top, reducing the friction between the shackle and the swivel. By contrast, mooring no D12 was installed with a D-shaped mooring shackle with a flat pin on top, which left little room for the swivel to move around. Again, how the U-shaped and D-shaped shackles may affect the integrity of the swivel is a matter of expert evidence, and without such evidence the Plaintiffs have not even begun to discharge their burden of proof.

55.  Further, during cross examination, both Mr Johnston and Ms Li said that the U-shaped shackles on moorings nos. D11 and D20, as shown in the photos produced by Mr Chan, were installed by the respective hirers. Those shackles were not provided by ABC and there was no difference between the design of mooring no 12 with other swing moorings. I accept their evidence, which is consistent with the terms of the mooring agreement and is not contradicted by any of the Plaintiff’s evidence. In other words, if moorings nos. D11 and D20 were safer than mooring no D12, it was because the relevant hirers chose to install an extra shackle onto the buoy. The Plaintiffs cannot complain when it was their own decision not to install extra shackles.

56.  The Plaintiffs pointed out that after the incident in August 2017 ABC replaced all the swing moorings with new ones whose default design already includes a U-shaped shackle on top, and Mr Chan went so far as to argue that ABC replaced the moorings because it became alerted of the defective designs of the original moorings. When cross examined, Mr Johnston said the moorings were replaced in 2018 as part of ABC’s regular maintenance programme and it had nothing to do with the incident. Ms Li supplemented by saying that the replacement was planned well before the incident. Both of them said that while the new moorings may be better in causing fewer scratches to the yachts, the old moorings were safe. There is nothing to contract their evidence.

57.  Regarding the provision of two-buoy mooring, the Plaintiffs alleged that ABC had breached the Mooring Agreement by providing only a swing mooring to Mr Chan. In this connection, they relied on the first sentence of clause 3(a) of the Mooring Agreement, which as seen above provides that “The Hirer shall be responsible for keeping the two Mooring buoys of the Allocated Mooring in the Typhoon Shelter securely attached together at all times throughout the duration of this agreement”, to argue that ABC was contractually obliged to provide Mr Chan with a two-buoy mooring. In response, Mr Westbrook SC submitted that the Mooring Agreement was a standard form contract of ABC, and when interpreted properly, it should be clear that the first sentence of clause 3(a) was not related to Mr Chan. I agree. The Mooring Agreement does not oblige ABC to provide two-buoy moorings to Mr Chan. Rather, it stipulates that if the mooring provided is a two-buoy mooring (ie those moorings in the Aberdeen typhoon shelter), then the member is obliged to keep the two buoys securely attached together at all times. While the Mooring Agreement has apparently not stipulated as to what mooring was being rented to Mr Chan, Mr Chan himself accepted that from day one he knew the mooring assigned to him to the north of Middle Island was a swing mooring, which was also made clear by the renewal agreement.

58.  If the Plaintiffs’ complaint is that ABC should not have provided swing moorings at all because they are inherently less safe than two-buoy moorings, then it is for the Plaintiffs to adduce expert evidence to substantiate their claim. They have failed to do so. In any event, such a complaint would seem to go against common sense as swing moorings are commonplace. The Plaintiffs would have had to adduce sufficiently strong evidence to say that swing moorings are so inherently unsafe that they should not be provided by ABC or other boat clubs.

59.  In sum, I do not think the Plaintiffs’ pleadings allow them to argue that the swivel broke because of the various reasons suggested by the Plaintiffs during the trial, and the Plaintiffs have not adduced evidence to substantiate such complaints.

60.  On the other hand, the Plaintiffs complained that ABC did not carry out sufficient inspections to mooring no D12 and failed to advise them to remove the Yacht from the mooring in anticipation of super typhoon Hato. I accept that these complaints were raised in pleadings, but I have no hesitation in rejecting them.

61.  As analysed under issue 1, the component that failed and broke was the swivel. The buoy, the chain and the anchor block for mooring no D12 remained intact after super typhoon Hato, which is not like what happened in The Quercus, where the mooring chain parted. The duty to ensure that the tackles are proper, including any shackles or swivels, rests with the hirers including Mr Chan. Whether ABC sufficiently inspected mooring no D12 is irrelevant when the mooring itself was working perfectly well.

62.  In any event, all three witnesses of ABC, including Mr Johnston, Ms Li and Mr Wong Tim Fuk who is the head coxswain of ABC, testified that ABC would arrange staff to carry out regular inspections of the moorings. They have produced mooring status check lists from various dates, and in the trial Mr Wong confirmed that he did carry out visual inspection of the moorings including mooring no D12 on 3 July 2017 and 31 July 2017, ie two times in the month prior to super typhoon Hato, and he did not spot any problems with the mooring. Further Mr Johnston himself carried out underwater inspection to the moorings, and for mooring no D12, he did the underwater inspection on 19 April 2017. He produced the video footage of that diving inspection, and it can be seen that he did inspect the underwater components and remove the marine growth along the underwater components.

63.  The Plaintiffs argued that the inspections carried out by ABC were not sufficient, and in accordance with industry practice ABC should have employed cranes to lift up the moorings to see if they were adequately resistant. There is no evidence as to whether such a test is indeed the industry practice, and as mooring no D12 was working well at the material time, whether ABC carried out the lifting test is neither here nor there.

64.  As for the Plaintiffs’ complaint about ABC’s failure to advise them to take precautionary measures, Mr Johnston said ABC would routinely remind all members to keep their mooring tackles in sound conditions via newsletters and magazines, including the magazine of ABC named “Horizons”. Indeed, in the July-August 2017 issue of Horizons, yacht owners were specifically reminded of the steps to take for the safety and security of the yachts when a typhoon was approaching. For instance, yacht owners were reminded to check the shackle from the mooring lines to the swivel, to check that the swivel was rotating freely and was in good condition, and to replace the swivel if in doubt (which incidentally reinforces my analysis under issue 1 above that it was Mr Chan’s duty to provide and maintain the swivel). So if there was any duty on ABC’s part to advise Mr Chan on the precautionary measures, ABC already discharged that duty.

Issue 3 – Wrecking of the Yacht

65.  The Plaintiffs contended that ABC failed to monitor the situation during super typhoon Hato and to notify them in time after the Yacht started to break free from mooring no D12 for them to initiate a rescue operation.

66.  According to Mr Chan, the Marine Department informed him of the wrecking of the Yacht after midnight on 24 August 2017, and ABC informed him of the same by email only at 3:52pm on that day. Mr Chan said it might have taken some hours before the Yacht grounded ashore, and if ABC had notified him earlier, he could have asked his captain or the marine region of the police to try to salvage the Yacht.

67.  In response, Mr Johnston said ABC had installed CCTV in its Middle Island premises and ABC staff and members did have access to the footage of the CCTV in real time. Both he and Ms Li said, however, that the CCTV was only for security purpose to forestall people from stealing the yachts or their components. Mr Johnston added that during typhoon, especially super typhoon Hato, nothing could be clearly seen through the CCTV and there was no available technology at the time for monitoring the moorings during typhoon.

68.  There is no evidence from the Plaintiffs as to the exact time the Yacht began to break free from mooring no D12 and the time it took for the Yacht to ground ashore, which means there might or might not be time for a rescue operation. Further, there is no evidence from the Plaintiffs as to what the marine police might have done in response to the Plaintiff’s request and the Plaintiffs did not call Mr Chan’s captain to be a witness, so it is not known if the marine police or the captain would find it advisable or plausible to mount a rescue operation during such extremely bad weather. It is, with respect, highly speculative for the Plaintiffs to suggest that had ABC notified them earlier, the Yacht might not have wrecked.

69.  In light of the above, it is not necessary for me to decide if ABC owed a duty to Mr Chan to notify him timely when the Yacht started to drift out from mooring no D12. I would, however, observe that under the Mooring Agreement, it was the responsibility of Mr Chan to secure the Yacht to the mooring, and the Mooring Agreement did not oblige ABC to notify Mr Chan in the event that the Yacht drifted away from its mooring. It would therefore seem to me that ABC may not have any contractual or tortious obligation to notify the Plaintiffs if the Yacht broke free from the mooring.

Issue 4 – Quantum

70.  Given my ruling above that ABC is not liable to the Plaintiffs for the wrecking of the Yacht, the issue of quantum does not arise.

71.  That said, I would note that while the Plaintiffs claimed monetary compensation in the sum of HK$1,700,000 being the market value of the Yacht, they have not adduced any expert evidence on valuation. In fact, initially they have not even adduced evidence on the purchase price of the Yacht. During cross examination, it was put to Mr Chan that he bought the Yacht for HK$1,650,000, and only then did Mr Chan say he bought the Yacht for HK$4,000,000, with HK$1,650,000 paid as the first instalment. Still, there is no evidence on when the Yacht was bought (such that the depreciation period cannot be determined) and on the condition of the Yacht before it wrecked.

Conclusion

72.  Given my conclusion on liability under issues 1 to 3 above, I would dismiss the Plaintiffs’ claim against ABC. During the trial Mr Westbrook SC indicated he would ask for indemnity costs if the court was to rule in favour of ABC, because the Plaintiffs’ claim was devoid of merits, the repetitive cross examination by the Plaintiffs prolonged the trial and the Plaintiffs repeatedly referred to materials which had already been ruled out.

73.  I do not think this case warrants indemnity costs. While the Plaintiffs might not have conducted the cross examination in the most effective manner, the parties were able to complete the trial within schedule. Indeed if it had not been necessary for Ms Li to give evidence by VCF, day 4 of the trial might not have had to take place, and the Plaintiffs acted reasonably in consenting to the VCF application which saved time for arguments. ABC was not prejudiced by the Plaintiffs’ reference to inadmissible materials during cross examination as Mr Westbrook SC was astute in objecting to those questions.

74.  Mr Westbrook SC reminded this court that there was one costs order reserved by His Honour Judge Alan Kwong relating to ABC’s application for security for costs against the 1^st Plaintiff, which was made after Mr Chan’s claim was provisionally struck out. As Mr Chan’s claim was subsequently restored, ABC withdrew its application. Mr Westbrook SC asked for costs of that application, whereas Mr Chan proposed that costs be in the cause. Now that I have ruled in favour of ABC, there is no difference between the parties’ proposals.

75.  As such, I would make the following orders:-

(1)  The Plaintiffs’ claim be dismissed.

(2)  There be an order nisi that the Plaintiffs do pay ABC the costs of the action, including all costs reserved, with certificate for counsel, to be taxed on party-and-party basis if not agreed.

(3)  There be an order nisi that ABC do pay the Plaintiffs costs of the VCF application, to be taxed on party-and-party basis if not agreed.

The 1^st and 2^nd Plaintiffs appeared in person

Mr Simon Westbrook SC, instructed by Fairbairn Catley Low & Kong, for the defendant

DCCJ 3404/2021

[2025] HKDC 154

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3404 OF 2021

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DECISION

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Introduction

1.  The trial of the present action will commence on 17 February 2025 (with 5 days reserved).

2.  After the pre-trial review on 12 December 2024, the 2^nd Plaintiff belatedly took out 3 summonses on 2 January 2025, 6 January 2025 and 17 January 2025.

3.  In short, the 2^nd Plaintiff seeks:-

(1)  to amend the writ of summons and statement of claim;

(2)  to adduce his supplemental witness statement;

(3)  to adduce a purported expert report dated 18 April 2024 made by Lee Siu Leung;

(4)  specific discovery against the Defendant in respect of (i) its directors’ resolution and directors’ voting records from 2021 to 2024 as well as the authorization letters in these years; (ii) its agreement(s) with Government from 2015 to 2018 that was or were related to the mooring arrangement between parties; and (iii) its internal documents and guidelines regarding safety inspection.

4.  The 2^nd Plaintiff also asks that the trial dates from 17 to 21 February 2025 be vacated.

Background

5.  The Defendant is a well-known boating and sailing club in Hong Kong.

6.  The 1^st Plaintiff is the owner of a yacht named “Christine Lorraine” (the “Yacht”), and the 2^nd Plaintiff is a member of the Defendant.

7.  Pursuant to an agreement dated 16 March 2015 (the “Agreement”), the Defendant allocated a mooring space to the 2^nd Plaintiff for the mooring of the Yacht.

8.  When Typhoon Hato hit Hong Kong on 23 August 2017, the Yacht was blown off and grounded ashore. It was beyond repair.

9.  It is the Plaintiffs’ case that the Defendant was in breach of contract and/or negligent, and they sue the Defendant for damages in the amount of HK$1.7 million.

10.  It is the Defendant’s case that despite repeated requests, the 2^nd Plaintiff did not renew the Agreement, and as such there was no contractual relationship between the parties as of 23 August 2017. Further, the Defendant contends that there was no negligence on its part.

11.  For present purposes, it is unnecessary to set out the procedural history of the present proceedings in its entirety. It suffices to mention the following matters:-

(1)  Pursuant to paragraph 6 of the order made by Master Soong (as Registrar Soong then was) on 7 September 2022, in the event that the parties failed to agree the directions for appointing a single joint expert, the Plaintiffs should within 42 days take out a summons seeking expert directions. Unless the Plaintiffs took out a summons seeking expert directions on or before 19 October 2022, they would be deemed as having no intention to take out such application. It is not in dispute that the parties have never reached any consensus regarding expert directions. For reasons best known to the Plaintiffs, they did not take out an application seeking expert directions before 19 October 2022.

(2)  Pursuant to the orders made by Master Michael Lok on 1 March 2024, the 2^nd Plaintiff’s claims in this action were provisionally struck out, and the case was set down for trial[1]. On 8 October 2024, the 2^nd Plaintiff took out a summons seeking to reinstate his claims in the present action. Since the Defendant did not oppose such application, on 31 October 2024 I ordered that the 2^nd Plaintiff’s claims against the Defendant in this action and its status as a party to these proceedings be reinstated[2].

(3)  By a summons dated 25 October 2024, the 1^st Plaintiff sought discovery in respect of the documents showing that Messrs Fairbairn Catley Low & Kong (“FCLK”) were duly authorized to act for the Defendant in these proceedings. Although the Defendant’s stance was that such application was groundless, by a letter dated 26 November 2024, a certified true copy of the resolution dated 19 November 2024 passed by the Defendant’s general committee was provided to the Plaintiffs. It can be seen that that FCLK has been authorized to represent the Defendant since November 2017. In the circumstances, on 29 November 2024 I granted leave to the 1^st Plaintiff to withdraw the said summons dated 25 October 2025[3].

(4)  However, on 10 December 2024, the 1^st Plaintiff took out another summons seeking the resolutions and/or documents in respect of the Defendant’s directors’ meeting showing that FCLK was duly authorized to represent the Defendant in this action. At the pre-trial review on 12 December 2024, I dismissed the said summons with costs.

Deliberation

The Interlocutory Applications for adducing Expert Evidence, adducing Supplemental Witness Statement and Specific Discovery

12.  Mr Simon Westbrook SC (for the Defendant) indicates that with a view to saving time and costs and avoiding surprise at trial, the Defendant does not oppose the 2^nd Plaintiff’s applications (i) to amend the statement of claim (as the proposed amendment only concerns a minor clarification); and (ii) to adduce his supplemental witness statement, though the relevance thereof is not admitted and will be addressed at trial[4].

13.  Save as aforesaid, the Defendant objects the applications pursued by the 2^nd Plaintiff.

14.  The courts have repeatedly stressed that whilst the court’s exercise of powers is to ensure just resolution of disputes in accordance with the parties’ substantive rights, if trial is imminent, the party seeking to pursue a late interlocutory application has a high threshold to meet, and he should justify the delay and show good reasons for leave to be granted.

15.  In Giant Harvest Ltd v Ng Hai Corporation Ltd & Ors[2025] HKCFI 312 at paras 15 to 18, Peter Ng J stated:-

“15. In Chan Wing Cheung Allan v Ho Shu Yee Susana unrep, CACV 393 of 2004, 10 January 2005 at [9], Ma CJHC (as he then was) made the following points which are highly pertinent to the present discussion and will answer some of the submissions of Mr Leong SC.

“9. In my view, the Judge was correct in his attempt to case manage the trial of this action as best he could in the circumstances. Certainly, in my view, the exercise of his discretion here cannot be faulted. The following points are of note: ‑

While it can be accepted that the Defendant will inevitably be prejudiced by not having witness statements admitted into evidence, the Judge had to balance this prejudice against the prejudice caused to the Plaintiff in allowing them in at this very late stage. The Plaintiff would be prejudiced by having to face an inevitable adjournment of a trial that had been fixed for hearing a very long time ago. This was recognized by the Judge, rightly in my view, as being sufficient to constitute serious prejudice.

The predicament that the Defendant finds herself in is entirely of her own making. …

It is a theme running through Mr Lam’s submissions that the only real prejudice suffered by the Plaintiff was one that could be compensated for in costs. I have real doubts about this submission. Quite apart from the fact that the Defendant is legally aided (so that the benefit of any costs order may be limited), the Defendant suffers the prejudice of not having the trial take place at the scheduled time. This is often overlooked when matters are adjourned.

In any event, where an indulgence is sought from the Court, it would be a rare case indeed that this would be given, even on terms as to costs, without a satisfactory explanation being given to justify the grant of the indulgence…” (emphasis added)

16. In Converge Design and Construction Co Ltd v Mount Kelly International Ltd[2020] HKCFI 2433 at [2], Mimmie Chan J reiterated several well-known observations as to the court’s case management role after the CJR which this court entirely agrees:

“The courts have emphasized on repeated occasions that CJR is about early preparation for trial, in order to achieve the objectives of the Rules. It needs no further reminder that delay itself is a ground to refuse a late application, either for discovery or for the introduction of new pleadings and evidence, when trial is imminent. The onus is on the applicant to justify its delay and to show good reason for leave to be granted. Whilst delay is to be weighed against the probative value and relevance of the pleadings and the evidence sought to be introduced, it need not be emphasized further that the primary aim in the Court’s exercise of its powers is to secure the just resolution of disputes in accordance with the substantive rights of the parties. Such just resolution of disputes requires due consideration of the time occasioned by last minute applications to introduce amendments to the pleadings and/or evidence on the eve of trial. Prejudice is inevitably caused, in the disruptions in the preparation for trial, the need to consider the new evidence and the need to respond thereto, coupled with the need to locate witnesses at the last minute to consider and if necessary to respond to the new evidence, and the last minute distraction from the proper focus and priority of the due preparation for trial. This is actual prejudice.” (emphasis added)

17. Lastly, in Chu Hsiao Chiu v Ma Jinrui and anor[2020] HKCFI 942 at [18]–[20], Coleman J emphasized three points which are also germane here.

a. In the ‘post-CJR era’ that the underlying objectives emphasise not only substantive but also procedural fairness. Therefore, late or last-minute applications trigger the Court’s expectation that the applicant will provide a full account of the lateness of the application, and full justification as to why the application should be entertained at all at such a late stage.

b. There is no longer room for the notion that delay, even though inordinate and unexplained, will be forgiven as long as there is no prejudice and costs are paid. Courts should take into account that there may be an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Further, the vacation or adjournment of the hearing occasioned by last-minute applications may mean the loss of the hearing day which could have benefited other litigants, and inefficiencies in the use of Court time, which is a public resource. Hence, late applications can be dismissed on the basis of lateness alone.

c. Whilst the ultimate concern of the court is to achieve a just resolution of the case, it does not mean that a party should be permitted to raise any arguable case at any point in the proceedings, simply on payment of costs. If a party has been afforded a reasonable opportunity to advance its case, the just resolution of the case does not require that he should be allowed a further opportunity in spite of his own inordinate and inexcusable delay. An applicant making a late application is extremely unlikely to be able to rely upon self-induced prejudice.

18. This court accepts each case turns on its own facts and there should not be an inflexible rule that a party should be debarred from adducing relevant evidence on the ground of inexcusable or unexplained delay: Keiron Peter Arch Rochester v Glory Sky Precious Metals Ltd[2023] HKCFI 2536, Wilson Chan J at [15].”

16.  There is no question that the 2^nd Plaintiff’s applications come very late when trial is imminent.

17.  In my view, the delay is inordinate and inexcusable:-

(1)  The 2^nd Plaintiff had ample time and opportunities to pursue the interlocutory applications that are now before the court. There is no explicable reason why these applications were not pursued earlier.

(2)  The 2^nd Plaintiff could have applied to reinstate his claims and status as a party much earlier, but he chose not to do so.

(3)  The 2^nd Plaintiff did not promptly take action to pursue the present interlocutory applications after I made the order on 31 October 2024 reinstating his claims against the Defendant and his status as a party. There was a further delay of more than 2 months after my order dated 31 October 2024 was made.

(4)  In fact, the questions regarding expert directions arose back in September 2022. For reasons best known to the Plaintiffs, they did not comply with paragraph 6 of the order made by Master Soong on 7 September 2022. The present application taken out by the 2^nd Plaintiff seeking to adduce expert evidence simply flies in the face of the court’s order.

(5)  In this connection, it is pertinent to note that the purported expert report of Lee Siu Leung was dated 8 April 2024. This was more than 8 months before the 2^nd Plaintiff’s summonses were taken out.

(6)  In my view, the delay on the part of 2^nd Plaintiff is substantial and inexcusable, and his litigation conduct is deplorable.

18.  I am also concerned about the disruption caused by the 2^nd Plaintiff’s late applications and the prejudice that the Defendant will suffer if these late applications were allowed:-

(1)  If the 2^nd Plaintiff’s applications were allowed, there will be expert evidence and plausibly new materials.

(2)  In my view, the Defendant will be prejudiced as it will be pressurized to address the 2^nd Plaintiff’s expert evidence and contentions arising from the new materials under intense time pressure.

(3)  There is a real risk that the trial may derail. Even if the trial does not derail, the disruption is most undesirable.

19.  Moreover, the 2^nd Plaintiff’s applications for specific discovery have no merits and are liable to be dismissed on this basis:-

(1)  Insofar as the Defendant’s authorization letters, resolutions and voting records are concerned:-

(a)  The 2^nd Plaintiff seeks these documents for the purpose of contending that the Defendant’s solicitors on records, namely FCLK, have no authority to represent the Defendant in these proceedings.

(b)  In Bold Shine Investment Ltd v Zheng De & Ors[2024] HKCA 767at paras 26-28, Chu VP, applying Kammy Town Limited v Super Glory Corporation (HCA 3524/2003, 14 January 2005) at paras 11, 13-14 and 18-21 (per A Cheung J (as Cheung CJ then was)), pointed out that a party seeking to raise a challenge in respect of questions regarding authority must do so at the earliest opportunity, and even the challenge involves substantial dispute of facts, the issue must be determined before the case proceeds further.

(c)  In the present case, the Plaintiffs have applied to strike out the Defendant’s defence (which was prepared and filed by FCLK) on the basis that the same was filed without authority. In fact, the Plaintiffs substantively responded to the assertions in the defence that was prepared and filed by FCLK on the Defendant’s behalf in their reply dated 28 September 2021, and the said reply was signed by the 2^nd Plaintiff.

(d)  In the premises, I cannot see how the 2^nd Plaintiff may seek to fish for materials at this late stage with a view to challenging the authority of FCLK.

(e)  In any event, the Defendant and/or FCLK have already produced a certified true copy of the resolution dated 19 November 2024. As pointed out by Mr Westbrook SC, the said resolution was unanimous. I cannot see how the Plaintiffs’ intended challenge may take off the ground at all.

(f)  I explained the aforesaid matters to the parties when I dismissed a similar application taken out by the 1^st Plaintiff under its summons dated 10 December 2024 at the pre-trial review on 12 December 2024. Whilst the said summons was taken out by the by the 1^st Plaintiff, the 2^nd Plaintiff made oral submissions with a view to conniving me to accede to the 1^st Plaintiff’s application. Bearing in mind the procedural history and the fact that the Plaintiffs jointly pursue a claim against the Defendant, I am of the view that the present discovery constitutes a flagrant abuse of the court’s process.

(2)  As regards the contract(s) between the Government and the Defendant from 2015 to 2017, they are utterly irrelevant. I cannot see how the same may support or undermine the respective case of the parties. This is an unwarranted fishing expedition.

(3)  As regards the Defendant’s internal guidelines or documents for safety inspection, it is also hard to see how these documents may support or undermine the respective case of the parties. There is no evidence showing that the Defendant disregarded its own internal guidelines. This is simply another unwarranted fishing expedition.

The Application to Vacate the Trial Dates in February 2025

20.  I now deal with the 2^nd Plaintiff’s application to vacate the trial dates from 17 to 21 February 2025.

21.  Trial dates are milestone dates: see Order 25, rule 3(8).

22.  The court shall not allow an application to vary a milestone date, unless there are exceptional circumstances justifying the variation: see Order 25, rules 3(2)-(3).

23.  There are no exceptional circumstances in the present case.

24.  For the reasons elaborated above, the late interlocutory applications for adducing expert evidence and specific discovery are unmeritorious and unjustified. They are liable to be dismissed.

25.  The 2^nd Plaintiff should have taken the present proceedings seriously. There was no legitimate reason why he did not abide by the case management directions provided by the court. He may take the view that he is not fully ready for the trial. However, he only has himself to blame, and this is a not reason to derail the upcoming trial, which was set down more than 10 months ago pursuant to the order made by Master Michael Lok on 1 March 2024.

Conclusion and Disposition

26.  For all the above reasons, I dismiss the 2^nd Plaintiff’s summonses dated 2, 6 and 17 January 2025.

27.  However, in light of the Defendant’s concession, I grant leave for the Plaintiffs:-

(1)  to amend the writ of summons and statement of claim herein as per the draft exhibited to the 2^nd Plaintiff’s affirmation filed on 21 January 2025; and

(2)  to adduce the 2^nd Plaintiff’s supplemental witness filed 20 January 2025, save that exhibit 7 (which is a copy of purported expert report of Mr. Lee Siu Leung dated 18 April 2024) shall be excluded.

28.  I am of the view that the 2^nd Plaintiff’s applications for adducing expert evidence and specific discovery are utterly unmeritorious and indeed abusive and disruptive. Further, despite the Defendant’s concession, it remains the case that 2^nd Plaintiff’s applications for leave to amend the statement of claim and to adduce his supplemental witness statement come very late, and he is seeking the court’s indulgence.

29.  In order to show the court’s disapproval of the 2^nd Plaintiff’s litigation conduct, I order the 2^nd Plaintiff to pay the Defendant’s costs on an indemnity basis, summarily assessed at HK$90,000.

30.  I thank Mr Simon Westbrook SC for his most helpful assistance.

The 1^st and 2^nd Plaintiffs appeared in person

Mr Simon Westbrook SC, instructed by Fairbairn Catley Low & Kong, for the Defendant