AFH HONG KONG STORES, LTD v. FULTON CORPORATION LTD

AFH HONG KONG STORES, LTD v. FULTON CORPORATION LTD

The court held it was not functus officio in relation to Fulton’s application because the proposed amendments to the counterclaim did not affect the three questions of law decided by the earlier Order 14A judgment; the amendments were confined, necessary to correct the pleading in light of the Notice of Appeal and to provide updated particulars, and constituted an exceptional case warranting leave to amend. Accordingly the application was granted in the terms sought and costs were ordered as assessed.

Citation
[2022] HKCFI 134
Parties
Plaintiff (original Action): AFH HONG KONG STORES, LIMITED; Defendant (original Action); Plaintiff (counterclaim): FULTON CORPORATION LIMITED; 2nd Defendant (by Counterclaim): ABERCROMBIE & FITCH CO
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 January 2022
Case Number
HCA2103/2017
Procedural Posture
Civil Application to Amend Pleadings After Judgment / Post Judgment; Appeal Pending
Outcome
Application granted; leave to amend Fulton’s Re-Amended Defence and Counterclaim granted in respect of the specified paragraphs
Legal Topics
Amendment of Pleadings After Judgment, Functus Officio, Order 14 a Questions of Law, Order 20 R.8(1 A), Costs Assessment
Source Language
EN
Civil Procedure Appeals Contract Law Costs Amendment of Pleadings After Judgment Functus Officio Order 14 a Questions of Law Order 20 R.8(1 A) +1 more

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Parties

AFH HONG KONG STORES, LIMITED

Plaintiff (original Action)

FULTON CORPORATION LIMITED

Defendant (original Action); Plaintiff (counterclaim)

ABERCROMBIE & FITCH CO

2nd Defendant (by Counterclaim)

Procedural Posture

Civil Application to Amend Pleadings After Judgment / Post Judgment; Appeal Pending

Legal Issues

  1. 1 Whether the trial court is functus officio and thereby lacks jurisdiction to allow amendment of pleadings after judgment
  2. 2 Whether leave should be granted to amend Fulton’s counterclaim after judgment and while appeal is pending
  3. 3 Whether the proposed amendments affect the questions of law decided under the Order 14A summons

Ratio Decidendi

The court held it was not functus officio in relation to Fulton’s application because the proposed amendments to the counterclaim did not affect the three questions of law decided by the earlier Order 14A judgment; the amendments were confined, necessary to correct the pleading in light of the Notice of Appeal and to provide updated particulars, and constituted an exceptional case warranting leave to amend. Accordingly the application was granted in the terms sought and costs were ordered as assessed.

Court Disposition

Application granted; leave to amend Fulton’s Re-Amended Defence and Counterclaim granted in respect of the specified paragraphs

Orders

  • Permission granted to amend the Re-Amended Defence and Counterclaim in terms of §§1 and 2 of the Summons
  • Fulton shall bear the costs of and occasioned by the Summons save the costs of the hearing of 14 December 2021 which shall be borne by the A&F Group; certificate for counsel; costs to be summarily assessed