LEE SAI NAM v. LI SHU CHUNG AND ANOTHER

LEE SAI NAM v. LI SHU CHUNG AND ANOTHER

Ken's 1st Statement did not constitute proper factual witness evidence and therefore did not comply in substance with the Unless Order; the court struck it out and dismissed the Statements Summons. Although KJ was in breach of the Unless Order, the breach was not intentional or contumelious and the automatic sanction would be disproportionate in all the circumstances. The court granted leave to apply out of time and granted relief from the sanction subject to terms and an adjourned hearing to determine remaining statements and discovery issues.

Citation
LEE SAI NAM v. LI SHU CHUNG AND ANOTHER
Parties
Plaintiff (original Action); 1st Defendant (counterclaim): Lee Sai Nam; 1st Defendant (original Action); Plaintiff (counterclaim): Li Shu Chung; 2nd Defendant (original Action): Li Joseph See Sun; 2nd Defendant (counterclaim) (withdrawn): Allied Ever Holdings Ltd; 3rd Defendant (counterclaim): Lee Sin Man Seline; 4th Defendant (counterclaim): Yuen Hing Enterprise Macao Commercial Offshore Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
31 May 2013
Case Number
HCA1711/2009
Procedural Posture
Civil Action and Counterclaim / Interlocutory: Determination of Statements, Relief and Strike Out Summonses (pre Trial Case Management)
Outcome
Partial: Ken's 1st Statement struck out; Statements Summons dismissed; Leave to apply for relief from sanction granted out of time and relief from sanction granted subject to terms; remaining issues adjourned for further hearing
Legal Topics
Unless Order, Relief From Sanction, Witness Statements, Case Management, Strike Out
Source Language
EN
Civil Procedure Evidence Trusts and Fiduciary Duties Costs Unless Order Relief From Sanction Witness Statements Case Management +1 more

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Parties

Lee Sai Nam

Plaintiff (original Action); 1st Defendant (counterclaim)

Li Shu Chung

1st Defendant (original Action); Plaintiff (counterclaim)

Li Joseph See Sun

2nd Defendant (original Action)

Allied Ever Holdings Ltd

2nd Defendant (counterclaim) (withdrawn)

Lee Sin Man Seline

3rd Defendant (counterclaim)

Yuen Hing Enterprise Macao Commercial Offshore Limited

4th Defendant (counterclaim)

Procedural Posture

Civil Action and Counterclaim / Interlocutory: Determination of Statements, Relief and Strike Out Summonses (pre Trial Case Management)

Legal Issues

  1. 1 Whether Ken's 1st witness statement complies with the Unless Order and should be struck out
  2. 2 Whether KJ complied with the Unless Order by exchange on 20 March 2012
  3. 3 Whether KJ's application for relief from sanction was in time or an extension should be granted

Ratio Decidendi

Ken's 1st Statement did not constitute proper factual witness evidence and therefore did not comply in substance with the Unless Order; the court struck it out and dismissed the Statements Summons. Although KJ was in breach of the Unless Order, the breach was not intentional or contumelious and the automatic sanction would be disproportionate in all the circumstances. The court granted leave to apply out of time and granted relief from the sanction subject to terms and an adjourned hearing to determine remaining statements and discovery issues.

Court Disposition

Partial: Ken's 1st Statement struck out; Statements Summons dismissed; Leave to apply for relief from sanction granted out of time and relief from sanction granted subject to terms; remaining issues adjourned for further hearing

Orders

  • Ken's 1st Statement struck out.
  • Statements Summons dismissed.