CHOW HOW YEEN MARGARET AND OTHERS v. WEX PHARMACEUTICALS INC AND ANOTHER

CHOW HOW YEEN MARGARET AND OTHERS v. WEX PHARMACEUTICALS INC AND ANOTHER

The court exercised its discretion to discharge the writ extension order and the order granting leave to serve out, and to set aside service on the defendants because the plaintiffs failed to establish a good reason to extend the writ (GlobalMed being fictitious was not material given the replacement Acro Pharm agreement), the relevant facts were discoverable earlier making the claims at least arguably time-barred under the Limitation Ordinance s26, and there was material non-disclosure in the ex parte application; on that basis the extension, leave and service were properly discharged and set aside.

Citation
CHOW HOW YEEN MARGARET AND OTHERS v. WEX PHARMACEUTICALS INC AND ANOTHER
Parties
1st Plaintiff: CHOW HOW YEEN MARGARET; 2nd Plaintiff: GAO CHENG (XIE LI) COMPANY LTD; 3rd Plaintiff: MUSCULAR INVESTMENT COMPANY LTD; 1st Defendant: WEX PHARMACEUTICALS INC; 2nd Defendant: WEX MEDICAL LTD
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 March 2013
Case Number
HCA1035/2011
Procedural Posture
Civil Action (share Purchase; Alleged Misrepresentation/deceit; Breach of Agreement; Service Out of Jurisdiction) / Interlocutory Applications in Chambers to Discharge Writ Extension, Set Aside Service and Discharge Leave to Serve Out
Outcome
Writ extension order discharged; order granting leave to serve out discharged; service of writ on defendants set aside; costs to follow the event and to be summarily assessed.
Legal Topics
Writ Extension Under Order 6 R 8, Service Out of Jurisdiction and Leave, Limitation Ordinance S26 (discovery Rule), Non Disclosure in Ex Parte Applications, Amendment of Pleadings, Setting Aside Service
Source Language
EN
Civil Procedure Contract Tort Deceit/misrepresentation Limitation Law Private International Law Service Out of Jurisdiction Writ Extension Under Order 6 R 8 Service Out of Jurisdiction and Leave Limitation Ordinance S26 (discovery Rule) +3 more

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Parties

CHOW HOW YEEN MARGARET

1st Plaintiff

GAO CHENG (XIE LI) COMPANY LTD

2nd Plaintiff

MUSCULAR INVESTMENT COMPANY LTD

3rd Plaintiff

WEX PHARMACEUTICALS INC

1st Defendant

WEX MEDICAL LTD

2nd Defendant

Procedural Posture

Civil Action (share Purchase; Alleged Misrepresentation/deceit; Breach of Agreement; Service Out of Jurisdiction) / Interlocutory Applications in Chambers to Discharge Writ Extension, Set Aside Service and Discharge Leave to Serve Out

Legal Issues

  1. 1 Whether there was good reason to extend validity of the writ under Order 6 r 8
  2. 2 Whether the original and amended claims were time-barred under the Limitation Ordinance (Cap 347) and s26 discovery rule
  3. 3 Whether the amended misrepresentation/deceit claim was properly pleaded

Ratio Decidendi

The court exercised its discretion to discharge the writ extension order and the order granting leave to serve out, and to set aside service on the defendants because the plaintiffs failed to establish a good reason to extend the writ (GlobalMed being fictitious was not material given the replacement Acro Pharm agreement), the relevant facts were discoverable earlier making the claims at least arguably time-barred under the Limitation Ordinance s26, and there was material non-disclosure in the ex parte application; on that basis the extension, leave and service were properly discharged and set aside.

Court Disposition

Writ extension order discharged; order granting leave to serve out discharged; service of writ on defendants set aside; costs to follow the event and to be summarily assessed.

Orders

  • Discharge the ex parte writ extension order dated 22 June 2012
  • Discharge the ex parte order dated 17 October 2012 granting leave to serve WEX Canada out of the jurisdiction