CCMD OVERSEAS LTD v. SINOM INVESTMENTS LTD AND ANOTHER

CCMD OVERSEAS LTD v. SINOM INVESTMENTS LTD AND ANOTHER

The court allowed the defendants to re-amend their defence because the proposed defence was not bound to fail and proportionality and justice favoured permitting the sole defence to be pleaded despite lateness; the court dismissed the application to admit fresh evidence because the defendants could with reasonable diligence have obtained the evidence earlier and reliance on inadequate advice from former solicitors does not satisfy the Ladd v Marshall first condition or constitute a special ground under RHC O.58 r.1(5).

Citation
[2023] HKCFI 2912
Parties
Plaintiff: CCMD OVERSEAS LIMITED; 1st Defendant: SINOM INVESTMENTS LIMITED; 2nd Defendant: ZHANG CHI
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 November 2023
Case Number
HCA903/2021
Procedural Posture
Civil Summary Judgment Appeal Arising From Loan and Share Charge / Appeal Hearing (applications for Re Amendment of Defence and Admission of New Evidence); Interlocutory Determination and Adjournment
Outcome
Amendment application granted; New Evidence application dismissed; appeal hearing adjourned to a date to be fixed; costs of the summons and costs occasioned by adjournment to plaintiff with certificate for two counsel; directions for lodgement of costs and submissions.
Legal Topics
Summary Judgment, Amendment of Pleadings, Admission of Fresh Evidence on Appeal, Share Charge and Receivership, Improper Purpose, Ladd V Marshall Test
Source Language
EN
Civil Procedure Equity Company Law Enforcement of Security Evidence Law Summary Judgment Amendment of Pleadings Admission of Fresh Evidence on Appeal +3 more

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Parties

CCMD OVERSEAS LIMITED

Plaintiff

SINOM INVESTMENTS LIMITED

1st Defendant

ZHANG CHI

2nd Defendant

Procedural Posture

Civil Summary Judgment Appeal Arising From Loan and Share Charge / Appeal Hearing (applications for Re Amendment of Defence and Admission of New Evidence); Interlocutory Determination and Adjournment

Legal Issues

  1. 1 Whether leave should be granted to amend the defence to plead a new defence of improper purpose and concerted action with receivers
  2. 2 Whether fresh evidence should be admitted on appeal under the Ladd v Marshall conditions
  3. 3 Whether failure to plead or adduce evidence earlier due to former solicitors' advice constitutes satisfactory explanation/special ground

Ratio Decidendi

The court allowed the defendants to re-amend their defence because the proposed defence was not bound to fail and proportionality and justice favoured permitting the sole defence to be pleaded despite lateness; the court dismissed the application to admit fresh evidence because the defendants could with reasonable diligence have obtained the evidence earlier and reliance on inadequate advice from former solicitors does not satisfy the Ladd v Marshall first condition or constitute a special ground under RHC O.58 r.1(5).

Court Disposition

Amendment application granted; New Evidence application dismissed; appeal hearing adjourned to a date to be fixed; costs of the summons and costs occasioned by adjournment to plaintiff with certificate for two counsel; directions for lodgement of costs and submissions.

Orders

  • Allow the defendants leave to re-amend the Amended Defence and Counterclaim as sought (grant Amendment Application)
  • Dismiss the defendants' application in paragraph 1 of the summons dated 31 October 2023 (New Evidence Application dismissed)