LAI DOMINIC YUK TSUN v. HANWOOD ENTERPRISES LTD AND ANOTHER

LAI DOMINIC YUK TSUN v. HANWOOD ENTERPRISES LTD AND ANOTHER

Because there is a genuine disputed fact as to whether the Plaintiff's 1st affirmation was effectively served on 18 March 2020, and that dispute can only be resolved by cross-examination of the process server and the 2nd Defendant's colleagues, the court must adjourn the appeal and direct the filing and attendance of witness affirmations for cross-examination before determining whether the Ladd v Marshall criterion (1) is satisfied and whether leave to adduce new evidence should be granted.

Citation
[2020] HKCFI 2626
Parties
Plaintiff: Plaintiff; 1st Defendant: 1st Defendant; 2nd Defendant: 2nd Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
6 October 2020
Case Number
HCA2708/2016
Procedural Posture
Appeal From Interlocutory Decision on Specific Discovery / Pre Hearing Directions / Adjournment Decision
Outcome
Hearing of the appeal adjourned; directions given for filing of witness affirmations and attendance for cross-examination; 2nd Defendant permitted to withdraw summons before Master Chow and that hearing vacated; no order as to costs on withdrawal.
Legal Topics
Specific Discovery, Admission of New Evidence on Appeal, Service of Documents, Ladd V Marshall Criteria
Source Language
EN
Civil Procedure Evidence Discovery Specific Discovery Admission of New Evidence on Appeal Service of Documents Ladd V Marshall Criteria

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Parties

Plaintiff

Plaintiff

1st Defendant

1st Defendant

2nd Defendant

2nd Defendant

Procedural Posture

Appeal From Interlocutory Decision on Specific Discovery / Pre Hearing Directions / Adjournment Decision

Legal Issues

  1. 1 Whether the 2nd Defendant should be granted leave to adduce new evidence on appeal
  2. 2 Whether Ladd v Marshall criterion (1) (that evidence could not have been obtained with reasonable diligence for use at the hearing below) is satisfied
  3. 3 Whether the disputed service of the Plaintiff's 1st affirmation on 18 March 2020 was effective and thus determinative of the new evidence issue

Ratio Decidendi

Because there is a genuine disputed fact as to whether the Plaintiff's 1st affirmation was effectively served on 18 March 2020, and that dispute can only be resolved by cross-examination of the process server and the 2nd Defendant's colleagues, the court must adjourn the appeal and direct the filing and attendance of witness affirmations for cross-examination before determining whether the Ladd v Marshall criterion (1) is satisfied and whether leave to adduce new evidence should be granted.

Court Disposition

Hearing of the appeal adjourned; directions given for filing of witness affirmations and attendance for cross-examination; 2nd Defendant permitted to withdraw summons before Master Chow and that hearing vacated; no order as to costs on withdrawal.

Orders

  • 2nd Defendant to file and serve affirmation evidence from her four colleagues on the attempted service on 18 March 2020 within 7 days
  • Plaintiff to file and serve affirmation of Poon in reply (if so wished) within 7 days thereafter