BIG ISLAND CONSTRUCTION (HK) LTD v. WU YI ENTERPRISES CO LTD

BIG ISLAND CONSTRUCTION (HK) LTD v. WU YI ENTERPRISES CO LTD

The Striking Out application was dismissed because it was neither a plain and obvious case of irrelevance nor timely given the consent orders permitting filing of the Rejoinders and subsequent conduct; the Subject Paragraphs bear on credibility and underlying financial matters relevant to the disputes. An order under O.4 r.9 was appropriate because the five related actions arose from the same series of transactions (1999–2004), involved overlapping issues and witnesses, and would benefit from sequential trials before the same bilingual judge for effective case management and to avoid inconsistent findings.

Citation
BIG ISLAND CONSTRUCTION (HK) LTD v. WU YI ENTERPRISES CO LTD
Parties
Plaintiff (hca1957/2005, Hca886/2007); Defendant (hca714/2007): Big Island Construction (HK) Limited; Defendant (hca1957/2005); Plaintiff (hca714/2007): Wu Yi Development Company Limited; Defendant (hca1957/2005): Wu Yi Construction Company Limited; Plaintiff (hca2196/2005): Nationbuild Pacific Limited; Defendant (hca2196/2005): Fu Yin Financial Investment Co., Limited; Defendant (hca886/2007): Wu Yi Enterprises Company Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 April 2008
Case Number
HCA886/2007
Procedural Posture
Civil (commercial Disputes Involving Alleged Loans and Fund Exchanges) / Interlocutory Applications (order 4 R.9 Direction and Striking Out Summonses) Heard in Chambers
Outcome
Striking Out application dismissed; O.4 r.9 application granted in part ordering sequential trials and case management directions
Legal Topics
Order 4 Rule 9 (consolidation/sequential Trials), Striking Out Pleadings, Consent Orders, Discovery, Credibility and Documentary Evidence, Costs
Source Language
EN
Civil Procedure Contract Evidence Order 4 Rule 9 (consolidation/sequential Trials) Striking Out Pleadings Consent Orders Discovery Credibility and Documentary Evidence +1 more

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Parties

Big Island Construction (HK) Limited

Plaintiff (hca1957/2005, Hca886/2007); Defendant (hca714/2007)

Wu Yi Development Company Limited

Defendant (hca1957/2005); Plaintiff (hca714/2007)

Wu Yi Construction Company Limited

Defendant (hca1957/2005)

Nationbuild Pacific Limited

Plaintiff (hca2196/2005)

Fu Yin Financial Investment Co., Limited

Defendant (hca2196/2005)

Wu Yi Enterprises Company Limited

Defendant (hca886/2007)

Procedural Posture

Civil (commercial Disputes Involving Alleged Loans and Fund Exchanges) / Interlocutory Applications (order 4 R.9 Direction and Striking Out Summonses) Heard in Chambers

Legal Issues

  1. 1 Whether specific paragraphs in Rejoinders are irrelevant and plainly to be struck out
  2. 2 Whether consent to file Rejoinders precludes later striking out or is an abuse of process
  3. 3 Whether HCA714/2007 (and HCA2134/2005) should be tried sequentially by the same judge with the 3 Actions under O.4 r.9

Ratio Decidendi

The Striking Out application was dismissed because it was neither a plain and obvious case of irrelevance nor timely given the consent orders permitting filing of the Rejoinders and subsequent conduct; the Subject Paragraphs bear on credibility and underlying financial matters relevant to the disputes. An order under O.4 r.9 was appropriate because the five related actions arose from the same series of transactions (1999–2004), involved overlapping issues and witnesses, and would benefit from sequential trials before the same bilingual judge for effective case management and to avoid inconsistent findings.

Court Disposition

Striking Out application dismissed; O.4 r.9 application granted in part ordering sequential trials and case management directions

Orders

  • The two summonses filed on 17 January 2008 (striking out applications) are dismissed
  • The plaintiffs in HCA1957/2005 and HCA2196/2005 shall pay the defendants the costs of the dismissed summonses and the costs of the summonses for leave to file evidence, to be taxed if not agreed, to be paid forthwith on a party-and-party basis