Hong Kong Golden Development (Holdings) Ltd v Chan Ma Choi  6 HKC 257,  HKCFI 2281
The plaintiff alleged, in the Writ of Summons filed in 2015, that it lent money to the defendant pursuant to a Loan Agreement in 2013. It obtained a default judgment against the defendant in 2015, which was set aside in 2018. It filed the Statement of Claim on 6 June 2019 and was granted leave by consent to make a wholesale amendment to its case, in which the Loan Agreement was no longer relied on. The Amended Statement of Claim filed in July 2020 pleaded that, by a Sale and Purchase Agreement between Chiu (on behalf of the plaintiff) and the defendant in April 2015, the defendant agreed to sell the property rights of a Lot to the plaintiff; by a Construction Agreement between the defendant (on behalf of the plaintiff) and Lau in July 2013 for constructing a small house on the Lot; the defendant on 18 June 2015 was in breach of the Sale and Purchase Agreement in refusing to take any steps to towards completion and residing in the small house; and the plaintiff claimed damages. The plaintiff applied on 16 June 2021 to add Chiu as the 2nd plaintiff and to amend the Amended Statement of Claim, adding that the Chiu and the defendant had a Common Understanding that Chiu would, through a corporate vehicle as his agent, sign the Sale and Purchase Agreement with the defendant, and the defendant would assign the right to develop the Lot to the 1st plaintiff or Chiu; and they claimed an order for specific performance and mesne profits. The defendant opposed the application, contending, inter alia: (i) the plaintiffs put forward wholly inconsistent cases in their pleadings and evidence in these and other proceedings; (ii) the new claim was time-barred; and (iii) delay.
Held, allowing the 1st plaintiff to add the 2nd plaintiff and to make the proposed amendments:
Wholly inconsistent cases
- (1) It was not open to the defendant to complain that the case pleaded in the draft Re-Amended Statement of claim was very much different from that pleaded in the Statement of Claim. This was because the Statement of Claim was replaced by the Amended Statement of Claim in its entirety by consent. It was appropriate to allow the amendments, so as to enable the real questions in controversy between the parties to be decided. The basis of the claim was still, in substance, the Sales and Purchase Agreement. This was not the occasion to consider forensically the alleged differences. It was up to the defendant’s counsel to cross-examine the 2nd plaintiff at the trial. Liang Jun Xian v Tsui Hin Chi  HKCU 179, (HCA 2288/2007, Suffiad J, 26 January 2011, unreported) and Ng Kwok Piu Philip v To Pui Kui  HKCU 2982, (HCA 51/2007, Mimmie Chan J, 29 December 2014, unreported) followed. Yu Man Fung Alice v Chau Sing Chi Stephen  HKCU 185, (HCMP 307/2015, Lam VP, Barma JA and Chow J, 20 January 2016, unreported) considered (paras 29-46).
- (2) It was still within six years when the application for joinder and amendment was filed. The defendant’s limitation defence was not reasonably arguable. In any event, the amendment should be allowed pursuant to O 20 r 5 of the Rules of the High Court (Cap 4A) ; the defendant would not be obliged to investigate into matters which were completely outside the ambit of those facts which he could reasonably be assumed to have investigated. WDA Architects Ltd v MHS Planners, Architects & Engineers  HKCU 1671, (CACV 116/2014, Kwan, Chu and McWalters JJA, 21 July 2015, unreported) applied. Global Bridge Assets Ltd v Sun Hung Kai Financial Ltd  4 HKLRD 474 ;  HKCU 1621 and Securities and Futures Commission v Lu Ruifeng  3 HKC 143 ;  1 HKLRD 1349 and considered (paras 58-68).
- (3) The action was still at pleading stage. It could not be said that the application was late. This was not a factor which would weigh heavily in the exercise of the discretion. The Court would give more weight to the desire to ensure justice and fairness between the parties, such that the real question in controversy could be tried. Hesson Development Ltd v Tang Ki Fan Tso with Tang Tin Kwai as Manager  1 HKLRD B4, (HCA 5584/1998, C Chu J, 30 September 2003, unreported) distinguished (paras 43-44, 81-84).
[The above is excerpted from the headnote to the report in HKC.]