SINO FAVOUR DEVELOPMENT LTD AND ANOTHER v. KAN FOR PING STEVEN AND OTHERS

SINO FAVOUR DEVELOPMENT LTD AND ANOTHER v. KAN FOR PING STEVEN AND OTHERS

Amendment was permitted only to the extent of pleading illegality of the Ting Agreements because that plea was not inconsistent with previous facts, was timely manageable within the case timetable and necessary to vindicate substantive rights; amendments impeaching completed sales, alleging forgery, asserting an implied 3‑year completion term and claiming payment as a condition precedent were refused for being res judicata/unsustainable, vague, unnecessary or prejudicial given completed sales and existing orders.

Citation
SINO FAVOUR DEVELOPMENT LTD AND ANOTHER v. KAN FOR PING STEVEN AND OTHERS
Parties
1st Plaintiff: Sino Favour Development Limited; 2nd Plaintiff: Shiny Develop Limited; 1st Defendant (hca 1517/2005): Kan Wai Chung; 1st Defendant (hca 1518/2005): Kan Kar Fai; 1st Defendant (hca 1519/2005): Kan Wai Ming; 1st Defendant (hca 1520/2005): Lau Fook Keung; 1st Defendant (hca 1521/2005): Kan For Ping Steven; 2nd Defendant: Barbican Capital Investment Limited; 3rd Defendant: Tsang Wing Kei, Wilkie
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 June 2010
Case Number
HCA1521/2005
Procedural Posture
Civil Contract/property / Pre Trial Application to Amend Defence and Counterclaim (case Management)
Outcome
Partial allowance of amendment: only the amendment pleading illegality allowed; all other proposed amendments refused.
Legal Topics
Amendment of Pleadings, Illegality Defence, Impeachment of Title, Trusts (bare Trustee), Injunctions, Forgery Allegation, Condition Precedent, Costs Assessment
Source Language
EN
Contract Property Equity Civil Procedure Land Law Public Policy Amendment of Pleadings Illegality Defence +6 more

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Parties

Sino Favour Development Limited

1st Plaintiff

Shiny Develop Limited

2nd Plaintiff

Kan Wai Chung

1st Defendant (hca 1517/2005)

Kan Kar Fai

1st Defendant (hca 1518/2005)

Kan Wai Ming

1st Defendant (hca 1519/2005)

Lau Fook Keung

1st Defendant (hca 1520/2005)

Kan For Ping Steven

1st Defendant (hca 1521/2005)

Barbican Capital Investment Limited

2nd Defendant

Tsang Wing Kei, Wilkie

3rd Defendant

Procedural Posture

Civil Contract/property / Pre Trial Application to Amend Defence and Counterclaim (case Management)

Legal Issues

  1. 1 Whether the 1st Defendants should be permitted to amend their Defence and Counterclaim to plead illegality of the Ting Agreements
  2. 2 Whether amendments challenging the Plaintiffs' title and completed sales should be allowed after an unappealed Order for Sale and completion of sales
  3. 3 Whether an implied term to complete construction within 3 years can be pleaded (necessary implication/business efficacy)

Ratio Decidendi

Amendment was permitted only to the extent of pleading illegality of the Ting Agreements because that plea was not inconsistent with previous facts, was timely manageable within the case timetable and necessary to vindicate substantive rights; amendments impeaching completed sales, alleging forgery, asserting an implied 3‑year completion term and claiming payment as a condition precedent were refused for being res judicata/unsustainable, vague, unnecessary or prejudicial given completed sales and existing orders.

Court Disposition

Partial allowance of amendment: only the amendment pleading illegality allowed; all other proposed amendments refused.

Orders

  • 1st Defendants to file the allowed amendment within 7 days
  • Plaintiffs and 2nd and 3rd Defendants to file any consequential amendments within 21 days