KWOK CHEUNG AND OTHERS v. THE KOWLOON MOTOR BUS CO (1933) LTD AND ANOTHER

KWOK CHEUNG AND OTHERS v. THE KOWLOON MOTOR BUS CO (1933) LTD AND ANOTHER

Leave to re-amend to add a LARCO claim was refused because the plaintiffs' Statement of Claim was a nullity for lacking a grant of letters of administration at commencement; Order 20(5)(4) is ultra vires insofar as it attempts to alter substantive capacity without legislative authority; section 30 of the Limitation Ordinance does not apply to validate or extend time for an existing action commenced within the limitation period to add a new substantive cause of action; a subsequent grant of administration does not have retrospective effect to cure the nullity.

Citation
KWOK CHEUNG AND OTHERS v. THE KOWLOON MOTOR BUS CO (1933) LTD AND ANOTHER
Parties
1st Plaintiff: KWOK CHEUNG; 2nd Plaintiff: KWOK KA WO; 3rd to 6th Plaintiffs: KWOK KA HING; KWOK KA PO; KWOK KA MEI; KWOK KA YIN (by their next friend KWOK CHEUNG); 1st Defendant: THE KOWLOON MOTOR BUS CO. (1933) LIMITED; 2nd Defendant: TAM YUN KEUNG
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 February 1984
Case Number
HCA2057/1980
Procedural Posture
Civil Personal Injury (fatal Accidents and Larco) / Application for Leave to Re Amend Statement of Claim (hearing on Amendment)
Outcome
Application dismissed; leave to re-amend refused; defendants awarded costs.
Legal Topics
Amendment of Pleadings, Law Amendment and Reform (consolidation) Ordinance (larco) Claims, Fatal Accidents Ordinance Claims, Limitation Periods and Discretionary Extension, Ultra Vires of Court Rules, Effect of Subsequent Grant of Administration
Source Language
EN
Civil Procedure Tort Succession Limitation Law Amendment of Pleadings Law Amendment and Reform (consolidation) Ordinance (larco) Claims Fatal Accidents Ordinance Claims Limitation Periods and Discretionary Extension +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 14 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

KWOK CHEUNG

1st Plaintiff

KWOK KA WO

2nd Plaintiff

KWOK KA HING; KWOK KA PO; KWOK KA MEI; KWOK KA YIN (by their next friend KWOK CHEUNG)

3rd to 6th Plaintiffs

THE KOWLOON MOTOR BUS CO. (1933) LIMITED

1st Defendant

TAM YUN KEUNG

2nd Defendant

Procedural Posture

Civil Personal Injury (fatal Accidents and Larco) / Application for Leave to Re Amend Statement of Claim (hearing on Amendment)

Legal Issues

  1. 1 Whether a plaintiff may add a LARCO claim by amending pleadings where letters of administration were obtained after the limitation period and after commencement of proceedings
  2. 2 Whether Order 20(5)(4) empowers amendment altering capacity to sue when that alters substantive rights and whether the rule is intra vires
  3. 3 Whether section 30 of the Limitation Ordinance can be invoked to override a limitation defence in respect of an existing action rather than to start a new action

Ratio Decidendi

Leave to re-amend to add a LARCO claim was refused because the plaintiffs' Statement of Claim was a nullity for lacking a grant of letters of administration at commencement; Order 20(5)(4) is ultra vires insofar as it attempts to alter substantive capacity without legislative authority; section 30 of the Limitation Ordinance does not apply to validate or extend time for an existing action commenced within the limitation period to add a new substantive cause of action; a subsequent grant of administration does not have retrospective effect to cure the nullity.

Court Disposition

Application dismissed; leave to re-amend refused; defendants awarded costs.

Orders

  • Application to re-amend Statement of Claim to add LARCO claim refused
  • Defendants entitled to their costs