GOBIND MOHAN AND ANOTHER v. BRIAN SHANE MCELNEY AND OTHERS

GOBIND MOHAN AND ANOTHER v. BRIAN SHANE MCELNEY AND OTHERS

The proposed delivery of voluntary particulars and amendment introduced new facts specific to the bank so constituted a new cause of action; accordingly leave to amend was refused. In any event, even if discretionary, the amendment was refused for lateness, for being a new case sprung at trial, and for lacking any pleaded confidentiality or real prospect of success on undue influence/fiduciary grounds, with the appropriate limitation period being six years rather than twelve.

Citation
GOBIND MOHAN AND ANOTHER v. BRIAN SHANE MCELNEY AND OTHERS
Parties
1st Plaintiff: Gobind Mohan (also known as Obi Mohan); 2nd Plaintiff: Detaram Sakhrani Mohan; 1st Defendant: Brian Shane McElney; 2nd Defendant: Johnson, Stokes & Master (a firm); 3rd Defendant: Peat, Marwick, Mitchell & Co. (a firm); 4th Defendant: The Hongkong and Shanghai Banking Corporation; 5th Defendant: Wardley Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 October 1984
Case Number
HCA4611/1978
Procedural Posture
Civil Application for Leave to Amend Statement of Claim / Application for Leave to Amend Pleadings at High Court Hearing
Outcome
Application for leave to serve voluntary particulars under paragraph 39 and to amend paragraph 20 refused.
Legal Topics
Amendment of Pleadings, Limitation Period (specialty V Simple Contract), Undue Influence and Confidentiality, Fiduciary Duty, Voluntary Particulars
Source Language
EN
Civil Procedure Limitation Law Equity Contract Amendment of Pleadings Limitation Period (specialty V Simple Contract) Undue Influence and Confidentiality Fiduciary Duty +1 more

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Parties

Gobind Mohan (also known as Obi Mohan)

1st Plaintiff

Detaram Sakhrani Mohan

2nd Plaintiff

Brian Shane McElney

1st Defendant

Johnson, Stokes & Master (a firm)

2nd Defendant

Peat, Marwick, Mitchell & Co. (a firm)

3rd Defendant

The Hongkong and Shanghai Banking Corporation

4th Defendant

Wardley Limited

5th Defendant

Procedural Posture

Civil Application for Leave to Amend Statement of Claim / Application for Leave to Amend Pleadings at High Court Hearing

Legal Issues

  1. 1 Whether the proposed amendments and voluntary particulars introduce a new cause of action
  2. 2 Whether the cause of action relied upon is an action upon a specialty attracting the twelve year limitation period under section 4(3) of the Limitation Ordinance
  3. 3 Which limitation period applies (six years or twelve years)

Ratio Decidendi

The proposed delivery of voluntary particulars and amendment introduced new facts specific to the bank so constituted a new cause of action; accordingly leave to amend was refused. In any event, even if discretionary, the amendment was refused for lateness, for being a new case sprung at trial, and for lacking any pleaded confidentiality or real prospect of success on undue influence/fiduciary grounds, with the appropriate limitation period being six years rather than twelve.

Court Disposition

Application for leave to serve voluntary particulars under paragraph 39 and to amend paragraph 20 refused.

Orders

  • Leave to serve voluntary particulars under paragraph 39 refused
  • Leave to amend paragraph 20 refused