KWAN KWOK LEUNG v. WONG HEI YU WINNY AND ANOTHER

KWAN KWOK LEUNG v. WONG HEI YU WINNY AND ANOTHER

Documentary evidence (Written Agreement, AE Letter, SD Orders) showed Art Express sold and delivered beauty products to Spa Sensations operated by Pacific Wide; there was no pleaded or evidential basis that Mr Kwan had actual possession or an immediate proprietary right to possess the Beauty Products. The averments that Mr Kwan was seller/owner were therefore frivolous and vexatious and incapable of supporting a conversion claim; accordingly the specified pleadings were struck out and amendments ordered; costs follow the event subject to limited carve out.

Citation
KWAN KWOK LEUNG v. WONG HEI YU WINNY AND ANOTHER
Parties
Plaintiff (original Action); 1st Defendant by Counterclaim: Wong Hei Yu Winny; Defendant (original Action); Plaintiff by Counterclaim: Kwan Kwok Leung (also known as Kwan Kwok Leung Cyril); 2nd Defendant by Counterclaim (discontinued): Outright International Limited
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
28 November 2008
Case Number
DCCJ5406/2007
Procedural Posture
Civil Action — Contractual and Tortious Disputes (conversion, Sale of Goods, Partnership/share Transfer) / Interlocutory Striking Out Application — Decision Handed Down
Outcome
Application partly allowed: specified averments relating to the BP Agreement and Beauty Products struck out; re-amendment of pleadings ordered; costs awarded to applicant (costs nisi) except as to First Limb issues
Legal Topics
Conversion, Breach of Contract, Striking Out Pleadings, Retention of Title, Possessory Title, Costs
Source Language
EN
Contract Tort Civil Procedure Conversion Breach of Contract Striking Out Pleadings Retention of Title Possessory Title +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 6 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Wong Hei Yu Winny

Plaintiff (original Action); 1st Defendant by Counterclaim

Kwan Kwok Leung (also known as Kwan Kwok Leung Cyril)

Defendant (original Action); Plaintiff by Counterclaim

Outright International Limited

2nd Defendant by Counterclaim (discontinued)

Procedural Posture

Civil Action — Contractual and Tortious Disputes (conversion, Sale of Goods, Partnership/share Transfer) / Interlocutory Striking Out Application — Decision Handed Down

Legal Issues

  1. 1 Whether pleaded averments relating to the BP Agreement and Beauty Products disclosed a reasonable cause of action
  2. 2 Whether the pleaded conversion claim in respect of the Beauty Products was frivolous or vexatious and thus liable to be struck out
  3. 3 Whether the claimant had pleaded or could show title to sue (actual possession or immediate right to possession) for conversion

Ratio Decidendi

Documentary evidence (Written Agreement, AE Letter, SD Orders) showed Art Express sold and delivered beauty products to Spa Sensations operated by Pacific Wide; there was no pleaded or evidential basis that Mr Kwan had actual possession or an immediate proprietary right to possess the Beauty Products. The averments that Mr Kwan was seller/owner were therefore frivolous and vexatious and incapable of supporting a conversion claim; accordingly the specified pleadings were struck out and amendments ordered; costs follow the event subject to limited carve out.

Court Disposition

Application partly allowed: specified averments relating to the BP Agreement and Beauty Products struck out; re-amendment of pleadings ordered; costs awarded to applicant (costs nisi) except as to First Limb issues

Orders

  • Struck out paragraphs 7A, 7B and 33A of the Re-Amended Defence and Counterclaim (RAD&C) insofar as they relate to the BP Agreement and the Beauty Products
  • Struck out the phrase 'and/or breach of the BP Agreement' in paragraph 22 of the RAD&C