TERKILD JOHAN TERKILDSEN AND ANOTHER v. BARBER ASIA LTD AND OTHERS

TERKILD JOHAN TERKILDSEN AND ANOTHER v. BARBER ASIA LTD AND OTHERS

The court granted fresh leave to file the Amended Statement of Claim subject to specified drafting changes, held there was no bar under O 20 r 9 to the application, found the ASOC did not unlawfully reintroduce causes of action previously struck out, ordered costs consequences (costs thrown away with specified taxation for the 4th defendant) and refused the transfer to the Commercial List for lack of jurisdiction to make that order.

Citation
TERKILD JOHAN TERKILDSEN AND ANOTHER v. BARBER ASIA LTD AND OTHERS
Parties
1st Plaintiff: TERKILD JOHAN TERKILDSEN; 2nd Plaintiff: JORGEN GUDIK MORTENSEN; 1st Defendant: BARBER ASIA LIMITED; 2nd Defendant: INTERNATIONAL STRATEGIES GROUP LIMITED; 3rd Defendant: CHRISTOPHER MARK BARBER; 4th Defendant: ANDREW NICHOLAS BARBER; 5th Defendant: PHILIP CLARK; 6th Defendant: JAYNIE BARBER; 7th Defendant: CHARLES FREDERICK DUNFORD; 8th Defendant: COLIN SCOTT-LAWS; 9th Defendant: PETER ELLIOT
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 October 2009
Case Number
HCA1963/2003
Procedural Posture
Civil Action / Interlocutory (application for Leave to Amend Pleadings)
Outcome
Leave granted to file the Amended Statement of Claim with specified amendments; costs order nisi in favour of defendants with 4th defendant's costs to be taxed under Legal Aid Regulations; application to transfer to Commercial List refused for lack of jurisdiction; procedural directions given for filing and service;...
Legal Topics
Protection of Investors Ordinance S 8, Breach of Trust, Negligence, Negligent Misrepresentation, Amendment of Pleadings, Costs, Transfer to Commercial List
Source Language
EN
Civil Procedure Securities Law Trusts Tort Law Company Law Protection of Investors Ordinance S 8 Breach of Trust Negligence +4 more

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Parties

TERKILD JOHAN TERKILDSEN

1st Plaintiff

JORGEN GUDIK MORTENSEN

2nd Plaintiff

BARBER ASIA LIMITED

1st Defendant

INTERNATIONAL STRATEGIES GROUP LIMITED

2nd Defendant

CHRISTOPHER MARK BARBER

3rd Defendant

ANDREW NICHOLAS BARBER

4th Defendant

PHILIP CLARK

5th Defendant

JAYNIE BARBER

6th Defendant

CHARLES FREDERICK DUNFORD

7th Defendant

COLIN SCOTT-LAWS

8th Defendant

PETER ELLIOT

9th Defendant

Procedural Posture

Civil Action / Interlocutory (application for Leave to Amend Pleadings)

Legal Issues

  1. 1 Whether leave to file the Amended Statement of Claim should be granted
  2. 2 Whether the proposed ASOC reintroduces causes of action previously struck out (notably negligent misrepresentation)
  3. 3 Whether the amendment is time‑barred by O 20 r 9

Ratio Decidendi

The court granted fresh leave to file the Amended Statement of Claim subject to specified drafting changes, held there was no bar under O 20 r 9 to the application, found the ASOC did not unlawfully reintroduce causes of action previously struck out, ordered costs consequences (costs thrown away with specified taxation for the 4th defendant) and refused the transfer to the Commercial List for lack of jurisdiction to make that order.

Court Disposition

Leave granted to file the Amended Statement of Claim with specified amendments; costs order nisi in favour of defendants with 4th defendant's costs to be taxed under Legal Aid Regulations; application to transfer to Commercial List refused for lack of jurisdiction; procedural directions given for filing and service;...

Orders

  • Leave granted to file the Amended Statement of Claim subject to the amendments specified in the decision (deletion of the expression '4th and 7th defendants as directors of the 1st defendant' from paragraph 66 and amendment of prayer for relief(1) to specify damages of US$500,000 and US$750,000 respectively together...
  • Order nisi that defendants have their costs thrown away consequent upon the amendment; costs on the summons for the amendment to be defendants' costs in the cause