Hua v Zhang
[2024] NZHC 545
•15 March 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-777
[2024] NZHC 545
BETWEEN YU HUA
First Plaintiff
NA LI
Second PlaintiffAND
JINGJING ZHANG
Defendant
Hearing: 4 March 2024 Appearances:
Emma L Pearce for the Plaintiffs D Hickson for the Defendant
Judgment:
15 March 2024
JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR
[Interlocutory application that plaintiffs file a more explicit statement of claim]
This judgment was delivered by me on 15 March 2024 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules
…………………………. Registrar/Deputy Registrar
Solicitors:
Cavell Leitch (Glenn Cooper/Emma Pearce), Christchurch, for the Plaintiff PCW Law Limited (Doug Hickson), Auckland, for the Defendant
HUA v ZHANG [2024] NZHC 545 [15 March 2024]
Introduction
[1] In the substantive proceeding, the plaintiffs, Mr Yu Hua (Mr Hua) and Ms Na Li (Ms Li) are claiming for sums lost due to Ms Jingjing Zhang’s (Ms Zhang) breach of a partly written and partly oral agreement (the Agreement).
[2] This judgment relates to the interlocutory application by Ms Zhang requiring the plaintiffs to file and serve a more explicit statement of claim.
Background
[3] In or around July 2017, Mr Hua, entered into an agreement with Ms Zhang, to form a company in which Mr Hua would have a 35 per cent shareholding. The Agreement was partly written and partly oral. The written part of the Agreement referenced the company to be formed as Dishuitang Trading Limited (DTL).
[4] Mr Hua advanced ¥1,000,000 to Ms Zhang for the purpose of establishing DTL.
[5] Ms Zhang registered a company named Baoji City Shaoyuan Trading Limited, trading as Shaoyuan Trading Limited (STL).
[6] Mr Hua also advanced a further ¥2,165,000 in personal loans to Ms Zhang to assist Ms Zhang, her friends and family with financial difficulties. Ms Zhang has not repaid any of the monies advanced, despite demands having been made. Mr Hua seeks repayment of the loans.
[7]Ms Zhang’s position is:
(a) The company formed by her pursuant to the Agreement was STL, which trades in China;
(b) Mr Hua holds 35 per cent in STL;
(c) The monies loaned and advanced to Ms Zhang were loans for third parties and not Ms Zhang.
[8]Mr Hua disputes these defences.
Ms Zhang’s application
[9]Ms Zhang seeks orders:1
(a) The plaintiffs, within 7 days, file and serve a more explicit statement of claim in accordance with the notice by defendant dated 11 August 2023 for further particulars or such particulars as may be directed by the Court; and
(b) The plaintiffs pay to the defendant costs of and incidental to this application.
[10]The grounds on which each order is sought are:2
(a) The plaintiffs’ statement of claim dated 18 May 2022 is defective in that it does not give fair notice to the plaintiffs’ causes of action and/or the particulars required by the High Court Rules 2016 or give sufficient particulars of time, place, amounts, names of person, nature and dates of instruments and other circumstances to inform the Court and the defendant of the plaintiffs’s cause of action.
(b) The plaintiffs failed and/or neglected to provide further and better particulars for their claim in accordance with the defendant’s notice of further particulars dated 11 August 2023.
(c) Appearing by the affidavit of AMBER WANG which is affirmed and filed herein.
Affidavit of Amber Wang dated 28 September 2023
[11] Amber Wang (Ms Wang) is a part time legal assistant of Ms Zhang’s solicitors, PCW Law Limited (PCW). Ms Wang has filed an affidavit supporting the interlocutory application.3
1 Interlocutory application on notice for orders requiring a more explicit statement of claim dated 2 October 2023 at [1].
2 At [2].
3 Affidavit of Amber Wang in support of notice of interlocutory application by defendant for orders for a more explicit statement of claim dated 28 September 2023.
[12] She deposes that, on 11 August 2023, Ms Zhang’s solicitor, Mr Hickson emailed the plaintiffs’ solicitor, Cavell Leitch. She states that attached to this email was the notice by the defendant to plaintiffs for further particulars of the statement of claim, also dated 11 August 2023 (the Notice for Particulars).
[13] Ms Wang further annexed to her affidavit an email dated 5 September 2023, wherein PCW informed Cavell Leitch that they had instructions to apply for Court orders if the plaintiffs failed to file the requested particulars by Tuesday 12 September 2023.
Notice for Particulars
[14] Ms Zhang sets out in the Notice for Particulars that the statement of claim dated 18 May 2022 is defective and requires further particulars as follows:4
Paragraph 5
(a) Specify:
(i)Whether Mr Hua, Ms Zhang and Wen Jie entered into the oral part of the alleged agreement to form a company called Dishuitang Trading Limited (the "DTL Agreement") in person or over the phone.
(ii)If Mr Hua, Ms Zhang and Wen Jie allegedly entered into the oral part of the DTL Agreement in person, where the plaintiffs allege that the oral part of the DTL Agreement was entered into in person.
Paragraph 13
(b) Specify whether the defendant allegedly requested Mr Hua to make further advances to her for financial assistance over the phone or in person.
(c) If the defendant requested Mr Hua to make further advances to her for financial assistance in person, specify:
(i)where she and Mr Hua were when the defendant allegedly made that request; and
(ii)when the defendant allegedly made that request.
4 Notice by the defendant to plaintiffs for further particulars of statement of claim dated 11 August 2023.
Paragraph 14
(d) Specify:
(i)approximately how much money the plaintiffs allegedly agreed to lend to Jun Shen to assist with financial difficulties when requested by Ms Zhang;
(ii)approximately how much money the plaintiffs allegedly agreed to lend to Wen Jie to assist with financial difficulties when requested by Ms Zhang;
(iii)whether the alleged oral terms of the DTL Agreement contained in paragraphs 14.1 to 14.3 of the statement of claim (the "Oral Term(s)”) were allegedly agreed upon over the phone or in person; allegedly agreed upon at the same time ie during the same conversation; or allegedly agreed upon during separate conversations on different dates.;
(iv)if the Oral Terms were all allegedly agreed upon at the same time, when they were agreed upon;
(v)if the Oral Terms were agreed upon during separate conversations and on different dates, in respect of each of the Oral Terms, approximately when the Oral Term was agreed upon; and
(vi)if the Oral Terms were agreed upon in person, where and when each of the Oral Terms were agreed upon.
Paragraph 15
(e) Specify whether the defendant allegedly made the request(s) in writing or orally.
(f) lf the defendant allegedly made the request(s) in writing, (the "Written Request(s)"):
(i)identify the document(s) and/ or electronic record(s) containing the Written Request(s); and
(ii)specify the date(s) upon which the defendant allegedly made the Written Request(s).
(g) If the defendant allegedly made the request(s) orally, (the "Oral
(h) Request(s)"), specify, in respect of each Oral Request:
(i)whether the defendant allegedly made the Oral Request in person or over the phone;
(ii)if the defendant made the Oral Request in person, where she and the plaintiffs were when she allegedly made the Oral Request; and
(iii)approximately when the defendant allegedly made the Oral Request.
Paragraph 31
(i) Specify:
(i)the terms of the alleged oral agreement (the "Oral Loan Agreement") whereby Mr Hua is alleged to have agreed to lend ¥2,165,000.00 (the "Alleged Loan") to the defendant, including, (but not limited to):
a.the term of the Alleged Loan;
b.whether interest was payable on the Alleged Loan and, if so, the annual rate of interest charged; and
c.whether the Alleged Loan was repayable upon demand or on a particular date.
(ii)approximately when Mr Hua and the defendant allegedly entered into the Oral Loan agreement;
(iii)whether the Oral Loan Agreement was allegedly made in person or over the phone; and if the Oral Agreement was allegedly made in person, where Mr Hua and the defendant were when they allegedly made the Oral Loan Agreement.
(j) If the Alleged Loan was repayable pursuant to the Oral Loan Agreement on a particular date, specify the date upon which the Alleged Loan was repayable.
Paragraph 32
(k) Specify the date by which the defendant was allegedly due, under the terms of the Oral Agreement, to repay the ¥2,185,000.00 to Mr Hua.
Paragraph 33
(l) Specify:
(i)whether the plaintiffs made demand for repayment of the alleged personal loans in writing or orally;
(ii)if the plaintiffs made demand for repayment of the alleged personal loans in writing, (the "Written Demand(s)"):
1. the document(s) and/ or electronic records containing the Written Demand(s); and
2. the date(s) of the Written Demand(s);
(iii)If the plaintiffs made demand for repayment of the alleged personal loans orally (the "Oral Demand(s)):
1. approximately when the plaintiffs made the Oral Demand(s);
2. whether the plaintiffs made the Oral Demand(s) over the phone or in person; and
3. which of the plaintiffs allegedly made the Oral Demand(s).
[15] On 12 September 2023, Cavell Leitch’s solicitor, Ms Pearce responded to the Notice of Particulars as follows:
Paragraph 5
(a) The further particular sought is irrelevant as to pleadings. The request at paragraph 5, if relevant, will need to be made by way of a notice of interrogatories as interrogatories are to be directed towards facts, not evidence.5
(b) The further particular sought is non-sensical and nevertheless irrelevant as to pleadings.
Paragraph 13
(c) The requests at paragraph 13 will need to be made by way of a notice of interrogatories. It is, in any event, not relevant as to pleadings and the defendant admits the advances were made to her for financial assistance.
(d) The further particular sought is non-sensical and nevertheless irrelevant as to pleadings. The defendant will nevertheless know the answer to that question as she admits the advances were made
Paragraph 14
(e) Information pertaining to the further particulars requested at (d)(i)–(iii) above has been provided in discovery.
(f) Information pertaining to the further particulars requested at d(iv) – (v) above will need to be made by way of a notice of interrogatories and is not relevant to pleadings.
(g) Information pertaining to the further particulars requested at d(vi) – (vii) above is not necessary either as a further particular or interrogatory, per McGechan.
Paragraph 15
(h) The defendant has admitted that she requested the nominees to make the advances, will know how she made the requests and would have discovered the requests made in writing.
5 Tourplan Pacific Ltd v Australian Tours Management Pty Ltd [2017] NZHC 2210 at [44]–[46].
Paragraph 31
(i) Information pertaining to the alleged oral loan agreement has been provided in discovery in a phone call between the parties.
(j) The oral agreement was entered into on or around 2 August 2018.
(k) The further particulars as to whether the oral loan agreement was made in person or over the phone and, if so, where is irrelevant as to pleadings.
(l) Information pertaining to the date upon which the alleged loan is repayable has been provided in discovery, and in any event, it was within 2 years.
Paragraph 32
(m) The sum quoted for repayment appears to be an error. In any event, information pertaining to this has been provided in discovery and it was within 2 years.
Paragraph 33
(n) The demand for repayment of the alleged personal loans in writing was made, in writing, via a letter sent by Cavell Leitch to Ms Zhang on 26 November 2019, which the defendant has discovered.
(o) The demand for repayment of the alleged oral personal loans was made in writing via a letter received from Domain Legal dated 2 April 2020, which the defendant has discovered.
Mr Hua and Ms Li’s Opposition
[16]Mr Hua and Ms Li oppose the application on the following grounds:6
(a) The statement of claim:
(i)provides sufficient information to inform the defendant of the case it has to meet and enabled them to take steps to respond;
poses no real risk that the defendant may face trial by ambush;
(iii)fairly identifies the contest between the parties;
(iv)limits the scope of the matters that the plaintiffs may put in issue;
(v)enables the defendant to know what witnesses it may need to retain and enable the defendant to start preparing evidence ahead of a formal exchange of evidence;
6 Notice of opposition of respondents to the applicant’s interlocutory application for more explicit statement of claim dated 10 October 2023.
(vi)provides an opportunity for the defendant to seek summary determination if the claim is untenable; and
(vii)provides a basis for pre-trial settlement discussions.
(b) The application does not specify the aspects of the statement of claim which are alleged to be defective and why.
(c) Insofar as the further particulars sought:
(i)Some of the further particulars sought are in respect of allegations which have been admitted, more particularly admissions in respect of paragraphs 13 and 15 of the statement of claim.
(ii)Most of the further particulars sought (which are decipherable) are not required for the purposes of pleading (irrelevant as to pleading), more particularly particulars sought in respect of paragraphs 5, 13, 14 and 31 of the statement of claim.
(iii)Some of the further particulars sought are in respect of allegations which are answered in the discovery of documents.
(iv)Some of the further particulars are simply not understood and are non-sensical, for example particulars sought of paragraphs 5 and 13 of the statement of claim.
(d) The insistence of excessively refined pleadings is to be resisted as it is unnecessary and a waste of costs and court time.
(e) The proceeding has advanced significantly, and both parties have agreed that full and proper discovery has been provided. Any further information sought, should be sought by way of interrogatories.
(f) The statement of claim was served on or around 13 June 2022 and the applicant’s comprehensive statement of defence was filed on 15 July 2022. No issues or prejudice were raised by the defendant at the time of the filing of the statement of defence.
(g) The applicant did not provide a notice for further particulars until 11 August 2023 – well over a year since first receiving the statement of claim and responding to it by way of a comprehensive statement of defence.
(h) The applicant does not provide any case law as a basis for its argument or in support of the application.
(i) As appears in the affidavit of Jessica Craighead dated 10 October 2023.
Affidavit of Jessica Craighead dated 10 October 2023
[17] Jessica Craighead (Ms Craighead) is a legal assistant employed by Cavell Leitch which acts for the plaintiffs. Ms Craighead has filed an affidavit supporting the notice of opposition.7
[18] Ms Craighead deposes that the defendant was served with the substantive proceedings on 13 June 2022, against which they filed a statement of defence on 15 July 2022. On 8 August 2022, following the parties’ interlocutory applications for further and better discovery, the parties reached an agreement that the discovery provided by each party was sufficient. Annexed to the affidavit is a joint memorandum dated the same which confirms this. The request for further particulars of the plaintiffs’ statement of claim was not sent until 11 August 2023, a year after the statement of claim was served and the issues pertaining to discovery being resolved.
[19] Ms Craighead’s affidavit supports the ground of opposition that the requests for further particulars:
(a) would be best sought by way of interrogatories;
(b) were irrelevant and not required for the purposes of pleading;
(c) were provided over the course of discovery; or
(d) related to allegations already admitted by Ms Zhang in the statement of defence.
Legal principles
[20] Rule 5.21 of the High Court Rules provides that a party may require any other party by notice to give further particulars that may be necessary to give fair notice of the cause of action or ground of defence or particulars required by the Rules. Rules 5.21(3) and (4) relevantly provide:
7 Affidavit of Jessica Jayne Craighead in support of notice of opposition dated 10 October 2023.
(3) If the party on whom a notice is served neglects or refuses to comply with the notice within 5 working days after its service, the court may, if it considers that the pleading objected to is defective or does not give particulars properly required by the notice, order a more explicit pleading to be filed and served.
(4) Even if no notice has been given under this rule, the court may on its own initiative order a more explicit pleading to be filed and served.
[21] Rule 5.26 sets out the requirements to which a statement of claim must conform and provides:
The statement of claim —
(a) must show the general nature of the plaintiff’s claim to the relief sought; and
(b) must give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances to inform the court and the party or parties against whom relief is sought of the plaintiff’s cause of action; and
(c) must state specifically the basis of any claim for interest and the rate at which interest is claimed; and
(d) in a proceeding against the Crown that is instituted against the Attorney- General, must give particulars of the government department or officer or employee of the Crown concerned.
[22] In Body Corporate 74246 v QBE Insurance (International) Ltd, Associate Judge Osborne set out the principles applicable to consideration of an application for further and better particulars, which I have had regard to and adopted.8 He said:
(a)The primary purpose of pleadings is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it.
(b)The statement of claim should state the claim in each case so that the Court has sufficient clarity and detail to understand the issues it has to rule on, and the defendant knows the case which is to be met and is able to prepare for trial. The function of particularised pleading therefore includes:
(i)limiting the scope of matters a party may put in issue of the trial (or in pre-trial settlement discussions);
(ii)enabling the other party to know the witnesses it will need to retain and to enable the party to start preparing ahead of the formal exchange of evidence; and
8 Body Corporate 74246 v QBE Insurance (International) Ltd [2015] NZHC 1360 at [18].
(iii)providing an opportunity for the other party to seek summary determination on the basis that the other party’s position is untenable.9
(c)Specifically required by r 5.26(b) High Court Rules are such particulars “… of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances as may suffice to inform the Court and the party or parties against whom relief is sought of the plaintiff’s cause of action.”
(d)The pleading must set out the facts or circumstances relied upon as giving rise to each cause of action alleged and the relief claimed as a consequence.
(e)The nature and level of particulars will depend on the facts of the individual case. In complex cases, over-pleading may obscure rather than clarify the issues.10
(f)The distinction between particulars and interrogatories is important
— particulars are matters of pleading, designed to make plain to the opposite party the case to be raised whereas interrogatories are sworn statements of fact, procured by the opposite party to assist that party in proving his or her case.
(g)A request for further particulars can be resisted if the request goes beyond the scope of particulars and probes for evidence.
(h)Questions which a Court can usefully ask itself are:
(i)Has sufficient information been provided to inform the other party of the case they have to meet and to enable them to take steps to respond?
(ii)Is there a real risk that the other party may face a trial by ambush if further particulars are not provided?
(iii)Is the request oppressive or an unreasonable burden upon the party concerned?
(i)In considering whether any party is likely to be taken by surprise, the Court is entitled to have regard to the fact that:
(i)If the particulars sought are within the knowledge or control of the requesting party an order for further particulars may be declined pending the completion of discovery or other matters;
(ii)Case management is available to ensure each side is fairly informed of what is in issue, with the Court able to require leading counsel to agree a list of issues;11
9 Platt v Porirua City Council [2012] NZHC 2445 at [19].
10 BNZ Investments Ltd v The Commissioner of Inland Revenue (2008) 23 NZTC 21,821 (HC) at [45].
11 At [45].
(iii)Briefs of evidence will be exchanged well in advance of the hearing.12 The Court is also entitled to take into account its ability in cases with substantial evidence to provide for defendants to have extended periods of time to digest and respond to the evidence of the plaintiff.
(j)Particulars of pleading should be approached in a practical and not a theoretical, mechanical or pedantic manner.13
Analysis
[23] The issue to be determined in this judgment is whether under the application of r 5.26, Mr Hua and Ms Li are required to provide the further particulars in relation to their claim as requested by Ms Zhang.
Ms Zhang’s submissions
[24] Mr Hickson, for Ms Zhang, refers to the decision of Body Corporate 74246 v QBE Insurance (International) Ltd14 and notes that it contains a helpful summary of the principles relevant to an application for further and better particulars of a claim.
[25] Mr Hickson further refers to Price Waterhouse v Fortex Group Ltd15 where the Court set out:
The pleader and Court simply asks “in the circumstances of this claim, is that statement sufficiently detailed to state a clear issue and inform the opposite party of the case to be met?” This is not, under modern practice, simply some minimum which the defendant needs so as to be able to plead. It is intended to supply an outline of the case advanced, sufficient to enable a reasonable degree of pre-trial briefing and preparation. Discovery and interrogatories are only an adjunct, not a substitute for pleading.
[26] Mr Hickson further notes that a balance must be struck and, as stated by Miller J in BNZ Investments v Commissioner of Inland Revenue,16 that in complex cases over- pleading may obscure rather than clarify the issues; that the nature and level of particulars necessary will depend on facts of an individual case,17 and a request for
12 Petrocorp Exploration Ltd v New Zealand Refining Co Ltd (1992) 7 PRNZ 53 (HC).
13 Price Waterhouse v Fortex Group Ltd CA179/98, 30 November 1998 at 19.
14 Body Corporate 74246 v QBE Insurance (International) Ltd, above n 8.
15 Above, n 13.
16 BNZ Investments Ltd v The Commissioner of Inland Revenue, above n 10.
17 Body Corporate, above n 8 at [18](e).
further particulars can be resisted if the request goes beyond the scope of particulars and probes for evidence.18
[27] Mr Hickson submits that while Ms Zhang has been able to plead her defence and discovery has been completed, the absence of particulars has created an impediment to her preparations for trial. He submits that Ms Zhang’s request for particulars is not probing for evidence and are not, as contended by Mr Hua and Ms Li, suitable to the administration of interrogatories. He submits that interrogatories are to obtain admissions of factual statements, not particulars of the claim and, also as contended by Mr Hua and Ms Li, it is not possible to provide particulars by way of discovery or correspondence.
[28] As to the issue of why particulars had not been requested earlier with the statement of defence and before discovery having been completed, Mr Hickson submits that it depends on the stage of the trial. He states that at this stage in the trial process, Ms Zhang is preparing her briefs of evidence and the absence of particulars is impeding this process.
Mr Hua and Ms Li’s submissions
[29]In opposing the application, Ms Pearce, for Mr Hua and Ms Li submits that:
(a)the claims against Ms Zhang are straightforward in nature;
(b)their statement of claim complies with the High Court Rules and principles as to pleadings; and
(c)the effect of the orders sought by Ms Zhang are prejudicial and unduly restrictive to Mr Hua and Ms Li.
[30] Ms Pearce, having referred to general pleading principles to those discussed previously in this judgment, then turns to the exercise of the Court’s discretion under rr 5.21 and 5.26 to order the provision of further particulars. She submits that the
18 Body Corporate, above n 8 at [18](g).
discretion is so wide that even when the Court acknowledges that the pleading lacks particulars, it will not automatically lead to the Court ordering a more explicit pleading to be filed, citing Malley & Co v Burgess.19 She submits that the Courts generally take a critical view towards litigants who seek excessively refined pleadings and that such applications have been acknowledged as unnecessary and wasteful of costs and Court time, citing BNZ Investments Ltd v Commissioner of Inland Revenue.20
[31] Ms Pearce reviewed the principles in Body Corporate 7424621 as noted at [20], and submits that in the context of applications for further particulars, a special situation exists where the applicant has knowledge of the issues involved and which the party from whom the particulars are sought does not. In such situations, she submits that particulars should not be ordered until after discovery by the applicant and cites Hickson v Scales22 and other authorities. She further refers to the decisions of Poros v Bax23 and Truckmaster Limited v Mastagard Waste Limited24 as authorities which have adopted these principles. She submits that claims which plead all material particulars other than those which can only be derived from information within the peculiar knowledge or control of the defendant is regarded as adequate.
[32] Ms Pearce makes the following further submissions in support of her opposition to the particulars sought:
(a)The existing claim contains no matters of surprise, ambush or guesswork, for Ms Zhang. The Court and the parties have already ascertained the issues for determination from the current pleadings and these issues were recorded in the Court’s minute of 29 September 2022.
(b)Discovery has taken place and while particulars should ordinarily be supplied prior to the exchange of discovery, Ms Zhang having completed discovery, has assessed the relevance of the documents
19 Malley & Co v Burgess [2015] NZHC 841.
20 BNZ Investments Ltd, above n 10.
21 Body Corporate, above n 8.
22 Hickson v Scales (1900) 19 NZLR 202 (EC); McGechan on Procedure, 5.21.05, and at n 8 above, at [18](i)(i).
23 Poros v Bax [2015] NZHC 1579 at [16].
24 Truckmaster Limited v Mastagard Waste Limited [2014] NZHC 1676.
against those pleadings and when doing so, is satisfied that the pleadings sufficiently outlined Mr Hua and Ms Li’s case and the issues that required determination. Ms Zhang abandoned her application for further and better discovery on the basis that she was satisfied with the documents that Mr Hua and Ms Li had discovered.
(c)The matter has been set down for a trial in 2025 and the timetable, including for exchange of briefs, has been directed by consent with the Court directing that Ms Hua and Ms Li are to provide their briefs of evidence at least 14 weeks prior to trial. In line with Body Corporate 74246, it is unlikely that Ms Zhang will be met with surprise or ambush as briefs of evidence are exchanged well in advance before the trial.
(d)Ms Zhang has sufficient particulars to know the case she has to meet and to that extent, to respond. She has responded with a statement of defence, outlining the background and issues to be determined in the first case management conference, assessed relevance against those issues and provided documents for discovery to this effect. She has also inspected Mr Hua’s and Ms Li’s documents for discovery in the light of this and abandoned her application for further and better discovery. Further, she has notified counsel for Mr Hua and Ms Li that she has determined the witnesses she will call at trial.
(e)Ms Zhang does not face trial by ambush if particulars are not provided as the case is clearly articulated in the statement of claim as evidenced by the Court’s minute background and the issues for determination have been determined.
(f)To provide the further particulars sought would be an unreasonable request for Mr Hua and Ms Li to adhere to, nor would it be in line with the purpose of the High Court Rules, which is to provide for a just, speedy and inexpensive determination of proceedings or interlocutory application. Ms Zhang’s application is probing for evidence which is not permitted in an application for further particulars.
Amendments to the statement of claim
[33] Mr Hickson, at [2] of his submissions, goes to some length to point out what he notes are inconsistencies or inaccuracies in the statement of claim with reference to paragraphs [5], [13]—[15] and [17] of the statement of claim.
[34] As I will determine later in this judgment, the majority of the further particulars sought by Ms Zhang are to be provided by Mr Hua and Ms Li. When providing those particulars, the pleadings regarding the terms of the “Agreement” (as defined in paragraph [5] of the statement of claim) relating to the formation of DTL and the personal loans to Ms Zhang, Jun Shen and Wen Jie should be clarified. I make a direction in this judgment accordingly.
Further particulars sought
[35] With respect to the submissions of counsel as discussed above in mind, I now turn to review the specifics of the particulars sought by Ms Zhang. Particularly, in my view:
(a)particulars should not be provided by discovery or correspondence;
(b)the particulars sought by Ms Zhang are not suitable to be provided by interrogatories;
(c)since a number of elements of Mr Hua and Ms Li’s claims involve alleged oral agreements, it is not unreasonable for Ms Zhang to seek the particulars of when, how and where those oral agreements were allegedly made;
(d)having reviewed the statement of defence, while a number of paragraphs in the statement of claim in respect of which Ms Zhang seeks further particulars are partially admitted by Ms Zhang, I do not accept Ms Pearce’s submission that the admissions by Ms Zhang are sufficient to make these matters in these paragraphs uncontroversial and thereby, obviating the need for any further particulars;
(e)the fact that Ms Zhang has filed a statement of defence, discovery has been completed, the issues to be determined at trial have been detailed in a case management memorandum, and the Court’s minute does not create any bar to Ms Zhang requesting further particulars at this stage of the trial process if the absence of such particulars is impeding her ability to prepare her evidence.
Paragraph 5 of the claim
[36] Mr Hua and Ms Li plead the assertion of a partly oral and partly written agreement with Ms Zhang and with Wen Jie. The particulars sought are to identify how (by phone or in person) and, if in person, where the oral agreements are alleged to have been entered into.
[37] In my view, particulars should be provided in accordance with r 5.26(b), as they are relevant to Ms Zhang’s ability to respond to the case against her and prepare for trial.
Paragraph 13 of the claim
[38] Mr Hua and Ms Li plead that Ms Zhang requested Mr Hua to make further advances to her for financial assistance and refers to these further advances as “Personal Loans”. Ms Zhang seeks particulars of how (by phone or in person) and, if in person, where a request for personal loans was alleged to have been made by Ms Zhang.
[39] In my view, these particulars should be provided under r 5.26(b) as they are relevant to Ms Zhang’s ability to respond to the case against her and prepare for trial.
Paragraph 14 of the claim
[40] Mr Hua and Ms Li plead that following a request by Ms Zhang, they agreed to lend money to Jun Shen to assist with financial difficulties. Similarly, in paragraph
14.2 of the claim, Mr Hua and Ms Li plead that following the request by Ms Zhang, they agreed to lend money to Wen Jie to assist with financial difficulties.
[41]The particulars sought by Ms Zhang in relation to these paragraphs are:
(a)how (by phone or in person,) they agreed with Ms Zhang to lend to Jun Shen and Wen Jie to assist with financial difficulties;
(b)how much money they alleged was agreed to be lent to Jun Shen and Wen Jie or to Ms Zhang herself?
(c)whether all of these alleged personal loans were orally agreed upon at the same time, i.e., during the same conversation or during a separate conversation on different dates?
(d)if the alleged personal loans were orally agreed upon at the same time, approximately when were they all agreed upon?
(e)if the personal loans were agreed upon on different dates, approximately when was each of the personal loan agreed upon?
(f)if the personal loans were orally agreed upon in person, approximately when and where each of the oral agreements were entered into?
[42] In my view, these particulars should be provided in accordance with r 5.26(b), as they are relevant to Ms Zhang’s ability to respond to the case against her and prepare for trial.
Paragraph 15 of the claim
[43] Mr Hua and Ms Li plead that Ms Zhang requested that the personal loans be made through her four different nominees: Yuling Wei, Cailan Yang, Jin Yang and Jin Tang. Ms Zhang seeks particulars of how she is alleged to have made this request or requests, whether by phone or in person and, if in person, where the request for personal loans was/were alleged to have been made by Ms Zhang and also when these requests had been made.
[44] In my view, these particulars should be provided as sought, pursuant to r 5.26(b) as they are relevant to Ms Zhang’s ability to respond to the case against her and prepare for trial.
Paragraph 31 of the claim
[45] Mr Hua and Ms Li plead that an oral agreement between Ms Zhang and Mr Hua to lend ¥2,165,000 to Ms Zhang. Ms Zhang seeks particulars of the terms of the oral loan agreement including the term of the loan, whether interest was payable and, if so, at what annual rate, and whether the loan was repayable on demand or on a particular date.
[46]Ms Zhang also seeks particulars as to:
(a)approximately when Mr Hua and Ms Zhang are alleged to have entered into the oral loan agreement;
(b)how the oral loan agreement was entered into, i.e. whether over the phone or in person and, if in person, where they allegedly entered into the oral loan agreement; and
(c)the date on which the loan is repayable, if not repayable on demand.
[47] I am of the view that these particulars should be provided pursuant to r 5.26(b) as they are relevant to Ms Zhang’s ability to respond to the case against her and prepare for trial.
Paragraph 32 of the claim
[48] Mr Hua and Ms Li claim a breach of the terms of the oral agreement as Ms Zhang has failed to repay the ¥2,165,000 . Ms Zhang seeks particulars of when the loan was allegedly due for repayment.
[49] In my view, these particulars should be provided in accordance with r 5.26(b), as they are relevant to Ms Zhang’s ability to respond to the case against her and prepare for trial.
Paragraph 33 of the claim
[50] Mr Hua and Ms Li plead that they have made demands for repayment of personal loans. Ms Zhang seeks particulars as to how the demand was made, whether orally or in writing. If made in writing, the particulars of the documents containing the written demands and the dates on which the written demands were made. If made orally, the particulars of how they were made (was it on the phone or in person?), when they were made, and whether it was Mr Hua or Ms Li who allegedly made the demands. If made orally and in person, the particulars of where Mr Hua, Ms Li and Ms Zhang were when the demands were made.
[51] In my view, the particulars are not required as at paragraph [22] of the statement of claim, it has already been pleaded that the demand was made by letter of 25 November 2019. While Mr Hickson made the point that there may have been other demands, given this demand is for the full amount claimed by Mr Hua and Ms Li (¥ 3,165,000), this seems an unlikely issue. Accordingly, these particulars do not need to be provided.
Orders
[52]I make the following orders:
(a)Mr Hua and Ms Li are to provide the further particulars sought by Ms Zhang in the notice dated 11 August 2023 within 10 days of the date of this judgment in respect of the following paragraphs of the statement of claim: Paragraphs 5, 13, 14, 15, 31 and 32.
(b)Mr Hua and Ms Li will, when providing the further particulars in accordance with [52](a) make any amendments necessary to paragraphs 5, 13 to 15 and 17 of the statement of claim to clarify the
inconsistencies raised at [2] of Mr Hickson’s submissions dated 22 February 2024.
(c)As Ms Zhang is largely the successful party, costs should follow the event. Counsel are directed to endeavour to agree costs and failing agreement being reached within a period of 20 working days from the date of this judgment, counsel for Ms Zhang will file a memorandum as to costs (not to exceed five pages) within 5 days after the expiry of the 20 working day period, and counsel for Mr Hua and Ms Li will file a memorandum (not to exceed five pages) in response within 5 working days of receipt of counsel for Ms Zhang’s memorandum. A decision as to costs will then be made on the papers.
…………………………….. Associate Judge Taylor
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