PROSPEROUS NURSING CENTRE LTD v. CHEUNG YUK YING AND ANOTHER

PROSPEROUS NURSING CENTRE LTD v. CHEUNG YUK YING AND ANOTHER

The court exercised its discretion to allow the proposed amendment to add the two defendants to the counterclaim and granted an adjournment and a trial de novo because a single trial on the conspiracy was preferable; however, having regard to timing and prejudice the court imposed full costs against the defendants to the plaintiff to reflect the lateness of the application and the reconstitution of the trial.

Citation
PROSPEROUS NURSING CENTRE LTD v. CHEUNG YUK YING AND ANOTHER
Parties
Plaintiff (by Original Action) and 2nd Defendant (by Counterclaim): Prosperous Nursing Centre Limited; 1st Defendant (by Original Action): Cheung Yuk Ying; 2nd Defendant (by Original Action) and Plaintiff (by Counterclaim): Yek Tak International Holdings Limited; 1st Defendant (by Counterclaim): Mak Siu Chun; Proposed Additional Defendant to Counterclaim: Mr Wong; Proposed Additional Defendant to Counterclaim: Mrs Wong
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 April 2005
Case Number
HCA3810/2002
Procedural Posture
Civil Application to Amend Pleadings (counterclaim) / Interlocutory (pre Trial Application to Add Parties); Adjournment Granted; Trial De Novo Ordered
Outcome
Application to amend allowed; adjournment granted; trial de novo ordered; costs awarded against the defendants
Legal Topics
Amendment of Pleadings, Addition/substitution of Parties, Conspiracy Claim, Adjournment, Trial De Novo, Costs for Amendment
Source Language
EN
Civil Procedure Tort (conspiracy) Property/lease Costs Amendment of Pleadings Addition/substitution of Parties Conspiracy Claim Adjournment +2 more

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Parties

Prosperous Nursing Centre Limited

Plaintiff (by Original Action) and 2nd Defendant (by Counterclaim)

Cheung Yuk Ying

1st Defendant (by Original Action)

Yek Tak International Holdings Limited

2nd Defendant (by Original Action) and Plaintiff (by Counterclaim)

Mak Siu Chun

1st Defendant (by Counterclaim)

Mr Wong

Proposed Additional Defendant to Counterclaim

Mrs Wong

Proposed Additional Defendant to Counterclaim

Procedural Posture

Civil Application to Amend Pleadings (counterclaim) / Interlocutory (pre Trial Application to Add Parties); Adjournment Granted; Trial De Novo Ordered

Legal Issues

  1. 1 Whether the defendants can add two new defendants to their counterclaim at a late stage
  2. 2 Whether the addition amounts to a new cause of action and whether that justifies refusal
  3. 3 Whether the addition would prejudice the proposed defendants or the plaintiff

Ratio Decidendi

The court exercised its discretion to allow the proposed amendment to add the two defendants to the counterclaim and granted an adjournment and a trial de novo because a single trial on the conspiracy was preferable; however, having regard to timing and prejudice the court imposed full costs against the defendants to the plaintiff to reflect the lateness of the application and the reconstitution of the trial.

Court Disposition

Application to amend allowed; adjournment granted; trial de novo ordered; costs awarded against the defendants

Orders

  • Amendment to the counterclaim to add the proposed defendants allowed
  • Adjournment of the trial granted and trial de novo ordered