AU WO CHEUNG v. AU AH

AU WO CHEUNG v. AU AH

The defence, although legally deficient in particulars, cannot be struck out summarily under Order 18 r19(1)(a) because factual evidence is required to determine whether a promise existed and whether the defendant has a right to remain; accordingly the court refused to exercise the summary power and granted leave to amend the defence and to later amend the plaintiff's reply.

Citation
AU WO CHEUNG v. AU AH
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
2 February 2012
Case Number
DCCJ249/2011
Procedural Posture
Possession / Vacant Possession; Repossession Proceedings / Interlocutory Strike‑out Application Under Order 18 Rule 19(1)(a)
Outcome
Plaintiff's summons to strike out defence dismissed; no order made against defendant on the summons; leave to amend granted.
Legal Topics
Possession, Strike Out for No Reasonable Defence, Order 18 Rule 19, Set‑off for Maintenance Arrears, Privity of Contract, Trust and Agency, Joinder
Source Language
EN
Property Law Civil Procedure Family Law Bankruptcy Possession Strike Out for No Reasonable Defence Order 18 Rule 19 Set‑off for Maintenance Arrears +3 more

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Procedural Posture

Possession / Vacant Possession; Repossession Proceedings / Interlocutory Strike‑out Application Under Order 18 Rule 19(1)(a)

Legal Issues

  1. 1 Whether the defence discloses a reasonable cause or defence under Order 18 rule 19(1)(a)
  2. 2 Whether an alleged promise by the parents to transfer property interest to the defendant is enforceable absent consideration or a deed
  3. 3 Whether set‑off for unpaid maintenance is permissible in these proceedings

Ratio Decidendi

The defence, although legally deficient in particulars, cannot be struck out summarily under Order 18 r19(1)(a) because factual evidence is required to determine whether a promise existed and whether the defendant has a right to remain; accordingly the court refused to exercise the summary power and granted leave to amend the defence and to later amend the plaintiff's reply.

Court Disposition

Plaintiff's summons to strike out defence dismissed; no order made against defendant on the summons; leave to amend granted.

Orders

  • No order on the plaintiff's summons (strike‑out application dismissed)
  • Leave granted to the defendant to amend the amended defence generally within 14 days