KONG KING ONG ALEXANDER v. KAN HEUNG WING AND ANOTHER

KONG KING ONG ALEXANDER v. KAN HEUNG WING AND ANOTHER

Leave to amend was granted in large part because the damages claim was properly pleaded as an alternative where specific performance became impossible and did not amount to an inconsistent plea; conversely the double deposit claim (seeking twice the total deposits) was disallowed because, on proper construction of clause 7(3) and absent a plea for rectification, the claim was unarguable and raised a hopeless case. Other disputed paragraphs were allowed because they were not so defective as to be useless and the proceedings were at an early stage where particulars and discovery could remedy lack of detail.

Citation
KONG KING ONG ALEXANDER v. KAN HEUNG WING AND ANOTHER
Parties
Plaintiff (by Original): KONG KING ONG ALEXANDER; 1st Plaintiff (by Counterclaim): KAN HEUNG WING; 2nd Plaintiff (by Counterclaim): YANG YOU MEI; 1st Defendant (by Original): KAN HEUNG WING; 2nd Defendant (by Original): YANG YOU MEI; 1st Defendant (by Counterclaim): KONG KING ONG ALEXANDER
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
15 September 2014
Case Number
DCCJ3724/2008
Procedural Posture
Civil Action (district Court) / Hearing on Summons to Amend Statement of Claim (application Dated 25 March 2014)
Outcome
Application to amend partially granted: proposed amendments allowed except paragraphs 19 and 21(2) of the proposed Amended Statement of Claim and paragraph (2)(b) of the prayer for relief which were disallowed.
Legal Topics
Amendment of Pleadings, Specific Performance, Damages, Deposits, Repudiatory Breach, Construction of Contractual 'escape' Clauses
Source Language
EN
Contract Civil Procedure Property Law Amendment of Pleadings Specific Performance Damages Deposits Repudiatory Breach +1 more

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Parties

KONG KING ONG ALEXANDER

Plaintiff (by Original)

KAN HEUNG WING

1st Plaintiff (by Counterclaim)

YANG YOU MEI

2nd Plaintiff (by Counterclaim)

KAN HEUNG WING

1st Defendant (by Original)

YANG YOU MEI

2nd Defendant (by Original)

KONG KING ONG ALEXANDER

1st Defendant (by Counterclaim)

Procedural Posture

Civil Action (district Court) / Hearing on Summons to Amend Statement of Claim (application Dated 25 March 2014)

Legal Issues

  1. 1 Whether the plaintiff should be granted leave to amend to add a damages claim in lieu of specific performance
  2. 2 Whether the plaintiff can claim double recovery of deposits (twice the total deposits) contrary to clause 7(3)
  3. 3 Proper construction of clause 7(3) of the Preliminary Sale and Purchase Agreement

Ratio Decidendi

Leave to amend was granted in large part because the damages claim was properly pleaded as an alternative where specific performance became impossible and did not amount to an inconsistent plea; conversely the double deposit claim (seeking twice the total deposits) was disallowed because, on proper construction of clause 7(3) and absent a plea for rectification, the claim was unarguable and raised a hopeless case. Other disputed paragraphs were allowed because they were not so defective as to be useless and the proceedings were at an early stage where particulars and discovery could remedy lack of detail.

Court Disposition

Application to amend partially granted: proposed amendments allowed except paragraphs 19 and 21(2) of the proposed Amended Statement of Claim and paragraph (2)(b) of the prayer for relief which were disallowed.

Orders

  • Plaintiff granted leave to file and serve amended Statement of Claim (and corresponding amendments to the Writ) within 3 days, incorporating allowed amendments and excluding paragraphs 19 and 21(2) and prayer (2)(b), together with further amendments in plaintiff's Skeleton Argument dated 1 September 2014 at...
  • 1st and 2nd defendants (By Original Action) granted leave to file and serve Amended Defence and Counterclaim (if any) within 28 days thereafter