LIU KAM HOI AND OTHERS v. LIU PING KUEN

LIU KAM HOI AND OTHERS v. LIU PING KUEN

On the materials before the court the defendant's explanation of mistake could not be rejected as not bona fide; the plaintiffs failed to demonstrate substantial prejudice from delay or inability to meet the new case; the proposed re-amendment was not inherently hopeless; accordingly the court should allow the...

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Citation
LIU KAM HOI AND OTHERS v. LIU PING KUEN
Parties
Plaintiffs (registered Owners of Lot No 258): Plaintiffs; Defendant (personal Representative of the Estate of Liu Fun Kee): Liu Ping Kuen; Original Defendant (deceased): Liu Fun Kee (Deceased)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
22 December 2010
Case Number
HCA6728/1998
Procedural Posture
Civil (land) Action Appeal Against Interlocutory Refusal to Amend Pleadings / Appeal From Master Ho Against Refusal (29 April 2010) to Permit Further Amendment of Amended Defence and Counterclaim
Outcome
Appeal allowed. Order of Master Ho of 29 April 2010 refusing the Defendant leave to further amend set aside. Defendant permitted to further amend the Amended Defence and Counterclaim in the terms of the draft exhibited as LPK-11. No general leave to amend granted.
Legal Topics
Amendment of Pleadings, Adverse Possession, Limitation Period, Withdrawal of Admissions, Interlocutory Injunctions, Prejudice and Bad Faith
Source Language
en
Land Law Civil Procedure Limitation Law Equity Amendment of Pleadings Adverse Possession Limitation Period Withdrawal of Admissions +2 more

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Parties

Plaintiffs

Plaintiffs (registered Owners of Lot No 258)

Liu Ping Kuen

Defendant (personal Representative of the Estate of Liu Fun Kee)

Liu Fun Kee (Deceased)

Original Defendant (deceased)

Procedural Posture

Civil (land) Action Appeal Against Interlocutory Refusal to Amend Pleadings / Appeal From Master Ho Against Refusal (29 April 2010) to Permit Further Amendment of Amended Defence and Counterclaim

Legal Issues

  1. 1 Whether the Defendant should be permitted to further amend the Amended Defence and Counterclaim to plead adverse possession and redefine leased portions of the Lot
  2. 2 Whether the Defendant's explanation of mistake/inconsistency is bona fide or constituted bad faith such as to disentitle him to amend
  3. 3 Whether the Plaintiffs would suffer undue prejudice by delay or by facing new allegations if amendment is allowed

Ratio Decidendi

On the materials before the court the defendant's explanation of mistake could not be rejected as not bona fide; the plaintiffs failed to demonstrate substantial prejudice from delay or inability to meet the new case; the proposed re-amendment was not inherently hopeless; accordingly the court should allow the defendant to further amend the defence and counterclaim as per the draft exhibited, while reserving any future amendment applications for fresh consideration.

Court Disposition

Appeal allowed. Order of Master Ho of 29 April 2010 refusing the Defendant leave to further amend set aside. Defendant permitted to further amend the Amended Defence and Counterclaim in the terms of the draft exhibited as LPK-11. No general leave to amend granted.

Orders

  • Appeal allowed and order of Master Ho (29 April 2010) set aside
  • Defendant granted leave to further amend the Amended Defence and Counterclaim as per the draft exhibited as LPK-11 to the 4th Affirmation of Liu Ping Kuen