LIN MAN YUAN v. KIN MING HOLDINGS INTERNATIONAL LTD

LIN MAN YUAN v. KIN MING HOLDINGS INTERNATIONAL LTD

The court exercised its discretion under Order 15 rule 6 to join Kho as a necessary party and to permit the amended counterclaim because the alleged harassment and intimidation are relevant to the credibility of key witnesses and materially affect the discretionary equitable relief sought (specific performance); the joinder avoids multiplicity and is not unduly prejudicial at the case management stage, but particulars of damage must be furnished by 30 June 2012 or the amended counterclaim will be struck out.

Citation
LIN MAN YUAN v. KIN MING HOLDINGS INTERNATIONAL LTD
Parties
Plaintiff (main Action): Lin; Defendant (main Action); Counterclaimant: Kin Ming; Proposed 2nd Plaintiff by Counterclaim; Joined as 2nd Defendant in Main Action: Jose Kho; Named 2nd Defendant by Counterclaim: Huang Ruifu
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 June 2012
Case Number
HCA216/2008
Procedural Posture
Civil Dispute: Contract (development Agreement) and Tort (harassment/intimidation) With Counterclaim / Case Management Hearing — Application to Amend Counterclaim and for Joinder; Interlocutory Decision
Outcome
Joinder granted and amended counterclaim permitted subject to conditions; mixed rulings on competing summonses with costs orders
Legal Topics
Joinder of Parties, Counterclaim, Amendment of Pleadings, Specific Performance, Harassment and Intimidation, Civil Justice Reform
Source Language
EN
Civil Procedure Contract Equity Tort Joinder of Parties Counterclaim Amendment of Pleadings Specific Performance +2 more

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Parties

Lin

Plaintiff (main Action)

Kin Ming

Defendant (main Action); Counterclaimant

Jose Kho

Proposed 2nd Plaintiff by Counterclaim; Joined as 2nd Defendant in Main Action

Huang Ruifu

Named 2nd Defendant by Counterclaim

Procedural Posture

Civil Dispute: Contract (development Agreement) and Tort (harassment/intimidation) With Counterclaim / Case Management Hearing — Application to Amend Counterclaim and for Joinder; Interlocutory Decision

Legal Issues

  1. 1 Whether a third party (Kho) can be joined as a plaintiff by counterclaim under Order 15 rule 6 despite limitations in Order 15 rule 3 and authority in Pender v Taddei
  2. 2 Whether the proposed amendment to the counterclaim is permissible at the current stage given delay and potential prejudice
  3. 3 Whether the counterclaim bears on the court's discretion to grant equitable relief (specific performance) in the main action

Ratio Decidendi

The court exercised its discretion under Order 15 rule 6 to join Kho as a necessary party and to permit the amended counterclaim because the alleged harassment and intimidation are relevant to the credibility of key witnesses and materially affect the discretionary equitable relief sought (specific performance); the joinder avoids multiplicity and is not unduly prejudicial at the case management stage, but particulars of damage must be furnished by 30 June 2012 or the amended counterclaim will be struck out.

Court Disposition

Joinder granted and amended counterclaim permitted subject to conditions; mixed rulings on competing summonses with costs orders

Orders

  • Allow Kin Ming's summons of 14 May 2012; order Kho to be joined as 2nd defendant in the main action to enable him to make the counterclaim as 2nd plaintiff by counterclaim; costs to Lin
  • Dismiss Lin's summons of 20 January 2012; costs to Kin Ming