TERKILD JOHAN TERKILDSEN AND ANOTHER v. BARBER ASIA LTD

TERKILD JOHAN TERKILDSEN AND ANOTHER v. BARBER ASIA LTD

The court may recall and correct an unsealed judgment; the draft amended statement of claim did not plead that the 5th defendant owed the statutory duty under the Protection of Investors Ordinance (s8) and therefore did not disclose a reasonable cause of action against him under that ordinance, so the claim against him is struck out.

Citation
TERKILD JOHAN TERKILDSEN AND ANOTHER v. BARBER ASIA LTD
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
27 March 2007
Case Number
HCA1963/2003
Procedural Posture
Civil Action (statutory Tort and Negligence) / Judgment (corrigenda)
Outcome
Judgment corrected by way of corrigenda; claim against the 5th defendant under the Protection of Investors Ordinance struck out; original costs order otherwise stands; no costs for hearings on 15 and 23 March 2007.
Legal Topics
Protection of Investors Ordinance S8(3), Directors' Liability, Rebuttable Presumption, Hedley Byrne Duty of Care, Strike Out for Failure to Plead Cause of Action, Recall and Correction of Judgment
Source Language
EN
Civil Procedure Tort Corporate Law Negligence Pleading Protection of Investors Ordinance S8(3) Directors' Liability Rebuttable Presumption +3 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 (statutory Tort and Negligence) / Judgment (corrigenda)

Legal Issues

  1. 1 Whether the court could recall and correct the unsealed judgment
  2. 2 Whether the draft amended statement of claim disclosed a cause of action against the 5th defendant under the Protection of Investors Ordinance
  3. 3 Whether omission of a named director from the pleaded statutory duty precludes liability under the ordinance

Ratio Decidendi

The court may recall and correct an unsealed judgment; the draft amended statement of claim did not plead that the 5th defendant owed the statutory duty under the Protection of Investors Ordinance (s8) and therefore did not disclose a reasonable cause of action against him under that ordinance, so the claim against him is struck out.

Court Disposition

Judgment corrected by way of corrigenda; claim against the 5th defendant under the Protection of Investors Ordinance struck out; original costs order otherwise stands; no costs for hearings on 15 and 23 March 2007.

Orders

  • Judgment of 8 March 2007 recalled and corrected in respect of the factual error regarding the 5th defendant
  • The draft amended statement of claim does not disclose a reasonable cause of action against the 5th defendant under the Protection of Investors Ordinance and that claim is struck out as against him