Coram: Hon. Cons, V.-P., Kempster & Clough, JJ. A.
Date of hearing: 16 March 1989
Date of delivery of judgment: 16 March 1989
J U D G M E N T
Cons, V.-P. delivered the judgment of the Court:
1. This is a motion which by its terms, asks for leave to adduce fresh evidence in the appeal, namely a. tenancy agreement between thePlaintiff and one of the tenants of the building in question. By its terms it does nothing more. However we found this morning thatcounsel hoped it would allow him to re-open the appeal and argue further on evidence that is already before us. We find no reasonwhatever to support that, and in so far as this may be an application for further argument, other than with regard to fresh evidence,we dismiss it.
2. Two affidavits have been filed, said to be in support of the motion. The first of them undoubtedly is. It introduces the documentand explains how it comes now to be in the appellant’s possession. On the other hand the second affidavit is not so. It sets outat length what is apparently expected to be counsel’s argument and then raises, for the first time clearly and in writing, allegationsof fraud. Not surprisingly those allegations led to an affirmation in reply, strenuously denying fraud.
3. Advance- skeletons of counsel’s argument are always acceptable to this Court. It is hardly necessary that they should be on affirmationby those instructing counsel. As to the allegations of fraud, these are now the subject of other proceedings and we make no comment,other than to say that. the document in question can undoubtedly be adduced in those proceedings, if it is though necessary. It cannotin our view be adduced in these proceedings, by reason that there is nothing before us to satisfy the first requirement of Ladd v. Marshall, namely that the document could not have been obtained with reasonable diligence before the trial and a fortiori the hearing of theappeal. Quite clearly it could have, indeed very easily. For these reasons the application is refused.
4. In the light of that decision we may now proceed to give our judgment in the appeal, which we had earlier prepared and agreed upon,but delayed naturally on receipt of the Notice of Motion, in case we should need to reconsider. As we do not, I would now ask myLord Clough to give his judgment, which is the judgment of the whole Court.
Henry Litton; Q.C., Andrew Li, Q.C. & Kenneth Kwok (M/s Lo & Lo) for Defendant./Appellant
Mills-Owens, Q.C. & Patrick Fung (M/s Susan Liang &, Co.) for Plaintiff/Respondent