HYPERMAX LTD v. GARWIN ENTERPRISES LTD AND ANOTHER

HYPERMAX LTD v. GARWIN ENTERPRISES LTD AND ANOTHER

The application to amend the statement of claim to plead the conviction and attendant findings was dismissed because allowing such amendments at this late stage would reverse the burden of proof and would be unfair and prejudicial to the 2nd defendant; only amendments limited to figures to tally with the plaintiffs' accountants' report were permitted; plaintiffs ordered to pay costs to all parties including Hypermax with certificate for counsel.

Citation
HYPERMAX LTD v. GARWIN ENTERPRISES LTD AND ANOTHER
Parties
1st Plaintiff (also Defendant in Hca2148): Garwin Enterprises Limited; 2nd Plaintiff: Koichiro Takahashi; 1st Defendant (and 1st Third Party in Hca2148): Ho Kai Cheung; 2nd Defendant (and 2nd Third Party in Hca2148): Ng Mei Fa; Plaintiff (hca2148): Hypermax Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 April 2011
Case Number
HCA2148/2006
Procedural Posture
Civil (consolidated Actions Hca2145/2006 & Hca2148/2006) / Trial — Application to Amend Statement of Claim Made During Trial; Ruling on Amendment
Outcome
Application to amend dismissed except for permitted amendments to figures to tally with plaintiffs' accountants' report
Legal Topics
Application to Amend Statement of Claim, Pleading Convictions (order 18, Rule 7 A), Burden of Proof, Prejudice and Fairness, Adjournment
Source Language
EN
Civil Procedure Evidence Criminal Conviction in Civil Proceedings Civil Conspiracy Costs Application to Amend Statement of Claim Pleading Convictions (order 18, Rule 7 A) Burden of Proof +2 more

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Parties

Garwin Enterprises Limited

1st Plaintiff (also Defendant in Hca2148)

Koichiro Takahashi

2nd Plaintiff

Ho Kai Cheung

1st Defendant (and 1st Third Party in Hca2148)

Ng Mei Fa

2nd Defendant (and 2nd Third Party in Hca2148)

Hypermax Limited

Plaintiff (hca2148)

Procedural Posture

Civil (consolidated Actions Hca2145/2006 & Hca2148/2006) / Trial — Application to Amend Statement of Claim Made During Trial; Ruling on Amendment

Legal Issues

  1. 1 Whether plaintiffs may amend the statement of claim during trial to plead a criminal conviction and attendant factual findings
  2. 2 Whether pleading the conviction would shift the legal burden of proof onto the 2nd defendant and 1st defendant in relation to conspiracy allegations
  3. 3 Whether permitting the amendment at a late stage would be unfair and prejudicial and require adjournment

Ratio Decidendi

The application to amend the statement of claim to plead the conviction and attendant findings was dismissed because allowing such amendments at this late stage would reverse the burden of proof and would be unfair and prejudicial to the 2nd defendant; only amendments limited to figures to tally with the plaintiffs' accountants' report were permitted; plaintiffs ordered to pay costs to all parties including Hypermax with certificate for counsel.

Court Disposition

Application to amend dismissed except for permitted amendments to figures to tally with plaintiffs' accountants' report

Orders

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