PASCAL MANAGEMENT LTD AND ANOTHER v. TSO HON LEUNG AND ANOTHER

PASCAL MANAGEMENT LTD AND ANOTHER v. TSO HON LEUNG AND ANOTHER

The application to amend was dismissed because the proposed amendment was late, the defendants would suffer real prejudice (insufficient time to plead and adduce requisite evidence, potential need for additional witnesses or expert evidence), and allowing the amendment so close to trial would unfairly jeopardise a fixed four-day trial; these considerations outweighed the potential relevance of the Penalty Issue.

Citation
PASCAL MANAGEMENT LTD AND ANOTHER v. TSO HON LEUNG AND ANOTHER
Parties
1st Plaintiff (original Action); 1st Defendant (by Counterclaim): Pascal Management Limited; 2nd Plaintiff (original Action): Chan Sau Mui; 1st Defendant (original Action); 1st Plaintiff (by Counterclaim): Tso Hon Leung; 2nd Defendant (original Action); 2nd Plaintiff (by Counterclaim): Ng Lai Oi; 3rd Plaintiff (by Counterclaim): Gold Ocean Trading Limited; 2nd Defendant (by Counterclaim): Li Siu Hung
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 February 2014
Case Number
HCA180/2011
Procedural Posture
Civil Contract Action (sale of Company Shares) With Counterclaim; Interlocutory Application to Amend Pleadings / Interlocutory — Pre Trial Application to Amend Reply (two Weeks Before 4‑day Trial Commencing 25 February 2014)
Outcome
Application dismissed
Legal Topics
Penalty Clause, Liquidated Damages, Amendment of Pleadings, Pre Trial Practice
Source Language
EN
Contract Civil Procedure Remedies Penalty Clause Liquidated Damages Amendment of Pleadings Pre Trial Practice

Case Brief

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Parties

Pascal Management Limited

1st Plaintiff (original Action); 1st Defendant (by Counterclaim)

Chan Sau Mui

2nd Plaintiff (original Action)

Tso Hon Leung

1st Defendant (original Action); 1st Plaintiff (by Counterclaim)

Ng Lai Oi

2nd Defendant (original Action); 2nd Plaintiff (by Counterclaim)

Gold Ocean Trading Limited

3rd Plaintiff (by Counterclaim)

Li Siu Hung

2nd Defendant (by Counterclaim)

Procedural Posture

Civil Contract Action (sale of Company Shares) With Counterclaim; Interlocutory Application to Amend Pleadings / Interlocutory — Pre Trial Application to Amend Reply (two Weeks Before 4‑day Trial Commencing 25 February 2014)

Legal Issues

  1. 1 Whether the alleged oral agreement providing for forfeiture of HK$2,000,000 was a penalty or genuine liquidated damages
  2. 2 Whether leave to amend the reply to plead the Penalty Issue should be granted at this late pre-trial stage
  3. 3 Whether the proposed amendment would cause unfair prejudice and jeopardise the trial timetable

Ratio Decidendi

The application to amend was dismissed because the proposed amendment was late, the defendants would suffer real prejudice (insufficient time to plead and adduce requisite evidence, potential need for additional witnesses or expert evidence), and allowing the amendment so close to trial would unfairly jeopardise a fixed four-day trial; these considerations outweighed the potential relevance of the Penalty Issue.

Court Disposition

Application dismissed

Orders

  • Application to amend reply dismissed
  • Costs to the defendants to be paid by the plaintiffs, to be taxed if not agreed, with certificate for counsel