SINO FAVOUR DEVELOPMENT LTD AND ANOTHER v. KAN WAI MING AND OTHERS

SINO FAVOUR DEVELOPMENT LTD AND ANOTHER v. KAN WAI MING AND OTHERS

The court allowed only the late amendment to plead illegality of the Ting Agreements because there was no undue prejudice, the delay was explainable and the interests of justice required inquiry into possible illegality; all other proposed amendments (challenge to title/sales, forgery challenge to completed sales, implied 3‑year completion term, and condition precedent payment) were refused as either barred by the unappealed Order for Sale and completed sales, legally unarguable or unnecessary given existing counterclaims.

Citation
SINO FAVOUR DEVELOPMENT LTD AND ANOTHER v. KAN WAI MING AND OTHERS
Parties
1st Plaintiff: Sino Favour Development Limited; 2nd Plaintiff: Shiny Develop Limited; 1st Defendant: Kan Wai Chung; 1st Defendant: Kan Kar Fai; 1st Defendant: Kan Wai Ming; 1st Defendant: Lau Fook Keung; 1st Defendant: Kan For Ping Steven; 2nd Defendant: Barbican Capital Investment Limited; 3rd Defendant: Tsang Wing Kei, Wilkie
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 June 2010
Case Number
HCA1519/2005
Procedural Posture
Civil Contractual and Property Disputes (land Development/sale) / Pre Trial Application to Amend Defence and Counterclaim (interlocutory Decision)
Outcome
Partial grant: amendment to plead illegality allowed; all other amendments refused.
Legal Topics
Illegality, Amendment of Pleadings, Res Judicata/orders for Sale, Small House Policy, Forgery, Costs
Source Language
EN
Contract Property Equity Civil Procedure Criminal (perjury) Illegality Amendment of Pleadings Res Judicata/orders for Sale +3 more

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Parties

Sino Favour Development Limited

1st Plaintiff

Shiny Develop Limited

2nd Plaintiff

Kan Wai Chung

1st Defendant

Kan Kar Fai

1st Defendant

Kan Wai Ming

1st Defendant

Lau Fook Keung

1st Defendant

Kan For Ping Steven

1st Defendant

Barbican Capital Investment Limited

2nd Defendant

Tsang Wing Kei, Wilkie

3rd Defendant

Procedural Posture

Civil Contractual and Property Disputes (land Development/sale) / Pre Trial Application to Amend Defence and Counterclaim (interlocutory Decision)

Legal Issues

  1. 1 Whether the 1st Defendants should be permitted late amendment to plead illegality of the Ting Agreements
  2. 2 Whether challenges to plaintiffs' title and completed sales are barred by the Order for Sale or res judicata and thus not amendable
  3. 3 Whether an implied term requiring completion within 3 years can be pleaded

Ratio Decidendi

The court allowed only the late amendment to plead illegality of the Ting Agreements because there was no undue prejudice, the delay was explainable and the interests of justice required inquiry into possible illegality; all other proposed amendments (challenge to title/sales, forgery challenge to completed sales, implied 3‑year completion term, and condition precedent payment) were refused as either barred by the unappealed Order for Sale and completed sales, legally unarguable or unnecessary given existing counterclaims.

Court Disposition

Partial grant: amendment to plead illegality allowed; all other amendments refused.

Orders

  • 1st Defendants allowed 7 days to file the amendment on illegality
  • Plaintiffs and 2nd and 3rd Defendants allowed 21 days for consequential amendments (if any)