YAN SUN KIN AND ANOTHER v. TIN SHUI WAI DEVELOPMENT LTD AND ANOTHER

YAN SUN KIN AND ANOTHER v. TIN SHUI WAI DEVELOPMENT LTD AND ANOTHER

Refusal to order a split trial of the preliminary issue and refusal to stay related proceedings: splitting the trial would not be just and convenient because factual issues (completion and alleged solicitors' negligence) require consideration together, anticipated discovery and common witnesses, likely duplication, escalation of costs, delay and risk of prejudice (fading memories and unavailable witnesses) and potential serial appeals; consequently applications for separate preliminary trials and for stays were refused and directions hearing was adjourned with costs to be determined at that hearing.

Citation
YAN SUN KIN AND ANOTHER v. TIN SHUI WAI DEVELOPMENT LTD AND ANOTHER
Parties
Plaintiff / 1st Defendant (various Actions): Tin Shui Wai Development Limited; 2nd Defendant / Third Party (solicitors): Baker & McKenzie (a firm); 2nd Defendant / Third Party (solicitors): Stikeman Elliott (a firm); Plaintiff (hca 4610/2003): Lau Chung Fai; Plaintiff (hca 4610/2003): Lam Man Yee; Plaintiff (hca 1887/2003): Cheng Chi Lung; Plaintiff (hca 4737/2003): Kan Moon Tong Danny; Plaintiffs (multiple Linked Actions): Various other individual plaintiffs
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 July 2006
Case Number
HCA4668/2003
Procedural Posture
Civil: Sale and Purchase Agreements / Alleged Professional Negligence / Declaratory Relief / Interlocutory Applications Heard — Ruling on Summonses and Applications for Preliminary Issue and Stays; Directions Hearing Adjourned
Outcome
Applications for trial of the preliminary issue in HCA 4610/2003 and HCA 4737/2003 refused; applications for stay in the other related actions dismissed; directions hearing adjourned; costs to be heard at directions hearing.
Legal Topics
Completion of Development, Rescission, Consent to Assign, Preliminary Issue/trial Management, Stay of Proceedings, Strike Out
Source Language
EN
Contract Law Professional Negligence Civil Procedure Property Law Completion of Development Rescission Consent to Assign Preliminary Issue/trial Management +2 more

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Parties

Tin Shui Wai Development Limited

Plaintiff / 1st Defendant (various Actions)

Baker & McKenzie (a firm)

2nd Defendant / Third Party (solicitors)

Stikeman Elliott (a firm)

2nd Defendant / Third Party (solicitors)

Lau Chung Fai

Plaintiff (hca 4610/2003)

Lam Man Yee

Plaintiff (hca 4610/2003)

Cheng Chi Lung

Plaintiff (hca 1887/2003)

Kan Moon Tong Danny

Plaintiff (hca 4737/2003)

Various other individual plaintiffs

Plaintiffs (multiple Linked Actions)

Procedural Posture

Civil: Sale and Purchase Agreements / Alleged Professional Negligence / Declaratory Relief / Interlocutory Applications Heard — Ruling on Summonses and Applications for Preliminary Issue and Stays; Directions Hearing Adjourned

Legal Issues

  1. 1 Whether the Development was complete as at 31 December 1997 pursuant to clause 4(1)(c) of the Sale and Purchase Agreement
  2. 2 Whether a right of rescission under clause 4(4)(a) accrued to purchasers on 1 January 1998
  3. 3 Whether the solicitors (Baker & McKenzie / Stikeman Elliott) owed and breached duties to advise purchasers and to take steps to preserve the right of rescission

Ratio Decidendi

Refusal to order a split trial of the preliminary issue and refusal to stay related proceedings: splitting the trial would not be just and convenient because factual issues (completion and alleged solicitors' negligence) require consideration together, anticipated discovery and common witnesses, likely duplication, escalation of costs, delay and risk of prejudice (fading memories and unavailable witnesses) and potential serial appeals; consequently applications for separate preliminary trials and for stays were refused and directions hearing was adjourned with costs to be determined at that hearing.

Court Disposition

Applications for trial of the preliminary issue in HCA 4610/2003 and HCA 4737/2003 refused; applications for stay in the other related actions dismissed; directions hearing adjourned; costs to be heard at directions hearing.

Orders

  • Application for trial of preliminary issue refused in HCA 4610/2003 and HCA 4737/2003
  • Applications for stay dismissed in the other listed actions