TSE MAN YIU AND OTHERS v. TSE MAN WAI AND ANOTHER

TSE MAN YIU AND OTHERS v. TSE MAN WAI AND ANOTHER

Leave to amend to plead illegality was refused (save for two clerical amendments) because the illegality case was unsound on the pleaded material (did not establish public‑interest illegality or dishonesty under Monat Investment), was seriously delayed without adequate explanation, and would cause irremediable prejudice to plaintiffs; costs were awarded to the plaintiffs in consequence.

Citation
[2025] HKCFI 967
Parties
1st Plaintiff: TSE MAN YIU; 2nd Plaintiff: TSE MAN YIU (administrator of estate of TSE YUI MING, deceased); 3rd Plaintiff: TSE MAN YIU (administrator of estate of MA LUEN KIU, deceased); 4th Plaintiff: TSE MAN YIU (administrator of estate of TSE MAN FUNG, deceased); 5th Plaintiff: TSE MAN HO; 1st Defendant: TSE MAN WAI; 2nd Defendant: TSE MAN WAI (sued as Executor of the will of TSE HUI YUET YING, deceased)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
6 March 2025
Case Number
HCA2656/2018
Procedural Posture
Civil Property Dispute Concerning Constructive Trust and HOS Eligibility / Pre Trial (post Pre Trial Review, Application to Amend Filed ~2.5 Months Before Trial)
Outcome
Application to file re‑re‑amended consolidated defence and counterclaim to plead illegality refused except for two clerical amendments (§§16 and 27 allowed). Costs to plaintiffs summarily assessed.
Legal Topics
Common Intention Constructive Trust, Illegality/ex Turpi Causa, Amendment of Pleadings, Home Ownership Scheme Eligibility, Delay and Prejudice in Amendment Applications, Legal Aid Costs Implications
Source Language
EN
Property Law Equity Civil Procedure Public Law/policy Criminal Law (illegality) Common Intention Constructive Trust Illegality/ex Turpi Causa Amendment of Pleadings +3 more

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Parties

TSE MAN YIU

1st Plaintiff

TSE MAN YIU (administrator of estate of TSE YUI MING, deceased)

2nd Plaintiff

TSE MAN YIU (administrator of estate of MA LUEN KIU, deceased)

3rd Plaintiff

TSE MAN YIU (administrator of estate of TSE MAN FUNG, deceased)

4th Plaintiff

TSE MAN HO

5th Plaintiff

TSE MAN WAI

1st Defendant

TSE MAN WAI (sued as Executor of the will of TSE HUI YUET YING, deceased)

2nd Defendant

Procedural Posture

Civil Property Dispute Concerning Constructive Trust and HOS Eligibility / Pre Trial (post Pre Trial Review, Application to Amend Filed ~2.5 Months Before Trial)

Legal Issues

  1. 1 Whether to allow extremely late amendment to plead illegality
  2. 2 Whether the pleaded facts and documents establish illegality within Monat Investment test
  3. 3 Whether prejudice and undue delay justify refusing amendment

Ratio Decidendi

Leave to amend to plead illegality was refused (save for two clerical amendments) because the illegality case was unsound on the pleaded material (did not establish public‑interest illegality or dishonesty under Monat Investment), was seriously delayed without adequate explanation, and would cause irremediable prejudice to plaintiffs; costs were awarded to the plaintiffs in consequence.

Court Disposition

Application to file re‑re‑amended consolidated defence and counterclaim to plead illegality refused except for two clerical amendments (§§16 and 27 allowed). Costs to plaintiffs summarily assessed.

Orders

  • Leave to file the proposed RRACDAC refused except that clerical amendments in §§16 and 27 are allowed
  • Defendants to pay plaintiffs' costs of the summonses, summarily assessed at HKD 150000