INCU GLOBAL LTD AND ANOTHER v. D\' AGUILAR CAPITAL MANGEMENT LTD AND ANOTHER

INCU GLOBAL LTD AND ANOTHER v. D\' AGUILAR CAPITAL MANGEMENT LTD AND ANOTHER

Master To’s order, interpreted sensibly in context, and the court’s discretionary power permitted the plaintiffs to file an affirmation exhibiting Skybound’s unsworn draft; an unsworn draft produced by an opposing party and exhibited in an affirmation is admissible as hearsay for interlocutory purposes under RHC Order 41 r.5(2), with defects affecting weight not admissibility; accordingly striking out was inappropriate and leave to file was granted.

Citation
[2022] HKCFI 2633
Parties
1st Plaintiff: Incu Global Ltd; 2nd Plaintiff: Incu Capital Management Ltd; 1st Defendant: D’Aguilar Capital Mangement Ltd; 2nd Defendant: Skybound Capital (HK) Ltd
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 August 2022
Case Number
HCA853/2018
Procedural Posture
Civil: Negligence Claim and Defendants' Counterclaim (summary Judgment on Counterclaim) / Interlocutory — Applications to Strike Out and for Leave to File Evidence; Summary Judgment Application Pending (paper Disposal)
Outcome
Striking Out Summons dismissed; Leave Summons allowed; consequential directions given for the summary judgment application.
Legal Topics
Summary Judgment, Admissibility of Affidavit/affirmation, Hearsay Evidence, Set Off Defence, Interlocutory Application, Striking Out
Source Language
EN
Civil Procedure Evidence Commercial Law Tort (negligence) Summary Judgment Admissibility of Affidavit/affirmation Hearsay Evidence Set Off Defence +2 more

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Parties

Incu Global Ltd

1st Plaintiff

Incu Capital Management Ltd

2nd Plaintiff

D’Aguilar Capital Mangement Ltd

1st Defendant

Skybound Capital (HK) Ltd

2nd Defendant

Procedural Posture

Civil: Negligence Claim and Defendants' Counterclaim (summary Judgment on Counterclaim) / Interlocutory — Applications to Strike Out and for Leave to File Evidence; Summary Judgment Application Pending (paper Disposal)

Legal Issues

  1. 1 Whether Master To’s order permitted the plaintiffs to file an affirmation exhibiting an unsworn draft affirmation produced by an opposing party
  2. 2 Whether an unsworn draft affirmation exhibited by another party is admissible in opposition to a summary judgment application under RHC Order 41 r.5(2)
  3. 3 Whether failure to adopt the contents of the exhibited document renders it inadmissible or merely affects its weight

Ratio Decidendi

Master To’s order, interpreted sensibly in context, and the court’s discretionary power permitted the plaintiffs to file an affirmation exhibiting Skybound’s unsworn draft; an unsworn draft produced by an opposing party and exhibited in an affirmation is admissible as hearsay for interlocutory purposes under RHC Order 41 r.5(2), with defects affecting weight not admissibility; accordingly striking out was inappropriate and leave to file was granted.

Court Disposition

Striking Out Summons dismissed; Leave Summons allowed; consequential directions given for the summary judgment application.

Orders

  • Striking Out Summons dated 26 May 2022 dismissed
  • Leave Summons dated 27 June 2022 allowed — leave granted to file and use Mr D’Silva’s 4th Affirmation exhibiting Mr Shou’s draft affirmation