GARWIN ENTERPRISES LTD AND ANOTHER v, HO KAI CHEUNG AND ANOTHER

GARWIN ENTERPRISES LTD AND ANOTHER v, HO KAI CHEUNG AND ANOTHER

The application to amend the statement of claim was dismissed because permitting the proposed amendments at this late stage would reverse the legal burden of proof on key matters and cause unfair and prejudicial impact on the 2nd defendant given the delay since the aborted March 2010 trial and the need for defendants to prepare to discharge the reversed burden; the dismissal was confined save for adjustments to figures to match the plaintiffs' accountants' report.

Citation
GARWIN ENTERPRISES LTD AND ANOTHER v, HO KAI CHEUNG AND ANOTHER
Parties
1st Plaintiff (hca2145); Defendant (hca2148): Garwin Enterprises Limited; 2nd Plaintiff (hca2145): Koichiro Takahashi; 1st Defendant: Ho Kai Cheung; 2nd Defendant: Ng Mei Fa; Plaintiff (hca2148): Hypermax Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 April 2011
Case Number
HCA2145/2006
Procedural Posture
Civil (consolidated Actions) / Interlocutory Hearing on Application to Amend Statement of Claim During Trial
Outcome
Application to amend statement of claim dismissed except for amendments limited to figures to tally with the plaintiffs' accountants' report; plaintiffs ordered to pay costs to all parties including Hypermax with certificate for counsel
Legal Topics
Amendment of Pleadings, Burden of Proof, Use of Criminal Conviction in Civil Proceedings, Prejudice and Fairness, Costs
Source Language
EN
Civil Procedure Evidence Company Law Criminal Conviction Collateral Use Amendment of Pleadings Burden of Proof Use of Criminal Conviction in Civil Proceedings Prejudice and Fairness +1 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 4 Authorities cited 1 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Garwin Enterprises Limited

1st Plaintiff (hca2145); Defendant (hca2148)

Koichiro Takahashi

2nd Plaintiff (hca2145)

Ho Kai Cheung

1st Defendant

Ng Mei Fa

2nd Defendant

Hypermax Limited

Plaintiff (hca2148)

Procedural Posture

Civil (consolidated Actions) / Interlocutory Hearing on Application to Amend Statement of Claim During Trial

Legal Issues

  1. 1 Whether plaintiffs may amend the statement of claim during trial to rely on a criminal conviction
  2. 2 Whether Order 18, rule 7A requires specific pleading of a conviction and related findings
  3. 3 Whether allowing the amendment would reverse the legal burden of proof and cause unfair prejudice to the 2nd defendant

Ratio Decidendi

The application to amend the statement of claim was dismissed because permitting the proposed amendments at this late stage would reverse the legal burden of proof on key matters and cause unfair and prejudicial impact on the 2nd defendant given the delay since the aborted March 2010 trial and the need for defendants to prepare to discharge the reversed burden; the dismissal was confined save for adjustments to figures to match the plaintiffs' accountants' report.

Court Disposition

Application to amend statement of claim dismissed except for amendments limited to figures to tally with the plaintiffs' accountants' report; plaintiffs ordered to pay costs to all parties including Hypermax with certificate for counsel

Orders

  • Application to amend dismissed save for matters on figures to tally with the plaintiffs' accountants' report
  • Plaintiffs to pay costs to all parties including Hypermax with certificate for counsel