SINO FAVOUR DEVELOPMENT LTD AND ANOTHER v. LAU FOOK KEUNG AND OTHERS

SINO FAVOUR DEVELOPMENT LTD AND ANOTHER v. LAU FOOK KEUNG AND OTHERS

The court allowed only the amendment pleading illegality (false declarations to the Lands Department and public policy concerns) because it was not factually inconsistent with prior pleadings, could be dealt with within case management timetables, and was necessary to determine whether Plaintiffs had recouped ill-gotten gains. All other proposed amendments (challenge to title/sales, forgery/attestation challenges, implied three-year completion term, and payment as condition precedent) were refused as unnecessary, vague, inconsistent with prior orders or barred by the unappealed Order for Sale.

Citation
SINO FAVOUR DEVELOPMENT LTD AND ANOTHER v. LAU FOOK KEUNG AND OTHERS
Parties
1st Plaintiff: SINO FAVOUR DEVELOPMENT LIMITED; 2nd Plaintiff: SHINY DEVELOP LIMITED; 1st Defendant: KAN WAI CHUNG; 2nd Defendant: BARBICAN CAPITAL INVESTMENT LIMITED; 3rd Defendant: TSANG WING KEI, WILKIE; 1st Defendant: KAN KAR FAI; 1st Defendant: KAN WAI MING; 1st Defendant: LAU FOOK KEUNG; 1st Defendant: KAN FOR PING STEVEN
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 June 2010
Case Number
HCA1520/2005
Procedural Posture
Civil Proceedings (contract and Property Dispute; Injunctive Relief) / Pre Trial Application to Amend Defence and Counterclaim (decision)
Outcome
Partial allowance of application: amendment on illegality allowed; all other proposed amendments refused; directions and costs orders made.
Legal Topics
Illegality of Contract, Amendment of Pleadings, Bare Trust, Interlocutory Injunction, New Territories Small House Policy, Forgery and False Attestation, Perjury, Res Judicata
Source Language
EN
Contract Law Property Law Civil Procedure Equity and Trusts Public Policy Illegality of Contract Amendment of Pleadings Bare Trust +5 more

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Parties

SINO FAVOUR DEVELOPMENT LIMITED

1st Plaintiff

SHINY DEVELOP LIMITED

2nd Plaintiff

KAN WAI CHUNG

1st Defendant

BARBICAN CAPITAL INVESTMENT LIMITED

2nd Defendant

TSANG WING KEI, WILKIE

3rd Defendant

KAN KAR FAI

1st Defendant

KAN WAI MING

1st Defendant

LAU FOOK KEUNG

1st Defendant

KAN FOR PING STEVEN

1st Defendant

Procedural Posture

Civil Proceedings (contract and Property Dispute; Injunctive Relief) / Pre Trial Application to Amend Defence and Counterclaim (decision)

Legal Issues

  1. 1 Whether a late amendment to plead illegality should be permitted
  2. 2 Whether pleading illegality is inconsistent with the earlier Order for Sale and prior conduct
  3. 3 Whether the Plaintiffs' title and completed sales can be challenged after sale under unappealed Order for Sale

Ratio Decidendi

The court allowed only the amendment pleading illegality (false declarations to the Lands Department and public policy concerns) because it was not factually inconsistent with prior pleadings, could be dealt with within case management timetables, and was necessary to determine whether Plaintiffs had recouped ill-gotten gains. All other proposed amendments (challenge to title/sales, forgery/attestation challenges, implied three-year completion term, and payment as condition precedent) were refused as unnecessary, vague, inconsistent with prior orders or barred by the unappealed Order for Sale.

Court Disposition

Partial allowance of application: amendment on illegality allowed; all other proposed amendments refused; directions and costs orders made.

Orders

  • 1st Defendants to file the allowed amendment within 7 days.
  • Plaintiffs and the 2nd and 3rd Defendants to file consequential amendments within 21 days.