WONG SAI PONG v. WONG KIM POR

WONG SAI PONG v. WONG KIM POR

Despite extreme lateness, the court exercised its discretion to grant leave to re-amend specific parts of the defence and counterclaim because the illegality plea raised a potentially valid defence that constituted an exceptional circumstance warranting vacatur of trial dates; certain other novel or previously...

Source-derived case information.

Citation
WONG SAI PONG v. WONG KIM POR
Parties
Plaintiff (original Action); 2nd Defendant (counterclaim): WONG SAI PONG; Defendant (original Action); Plaintiff (counterclaim): WONG KIM POR; 1st Defendant (counterclaim): TECCO INVESTMENT LIMITED; 3rd Defendant (counterclaim): CHAN CHOI SHING
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 October 2010
Case Number
HCA390/2006
Procedural Posture
Civil: Contract and Property Dispute With Counterclaim / Interlocutory Application to Re Amend Pleadings and for Discovery on Pre Trial, 35 Days Before Trial (trial Vacated for Amendments)
Outcome
Application partially granted and partially refused: leave to re-amend granted in specified respects; some proposed re-amendments refused; order for specific discovery granted; permission to file further witness statements granted; trial dates to be vacated/adjusted.
Legal Topics
Amendment of Pleadings, Illegality Defence, Implied Terms, Specific Discovery, Small House Policy, Pre Trial Directions
Source Language
en
Civil Procedure Contract Law Property Law Equity Fraud Administrative Law (land/building Licensing Policy) Amendment of Pleadings Illegality Defence +4 more

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Parties

WONG SAI PONG

Plaintiff (original Action); 2nd Defendant (counterclaim)

WONG KIM POR

Defendant (original Action); Plaintiff (counterclaim)

TECCO INVESTMENT LIMITED

1st Defendant (counterclaim)

CHAN CHOI SHING

3rd Defendant (counterclaim)

Procedural Posture

Civil: Contract and Property Dispute With Counterclaim / Interlocutory Application to Re Amend Pleadings and for Discovery on Pre Trial, 35 Days Before Trial (trial Vacated for Amendments)

Legal Issues

  1. 1 Whether leave should be granted to re-amend defence and counterclaim despite extreme lateness
  2. 2 Whether the proposed plea of illegality based on the Small House Policy is arguable and justifies vacating trial dates
  3. 3 Whether alleged implied terms (no mortgage without consent; property fit for occupation with water/electricity) can be pleaded at this late stage

Ratio Decidendi

Despite extreme lateness, the court exercised its discretion to grant leave to re-amend specific parts of the defence and counterclaim because the illegality plea raised a potentially valid defence that constituted an exceptional circumstance warranting vacatur of trial dates; certain other novel or previously deleted pleadings (notably the resurrected mortgage-related pleaded implied term) were refused for lack of satisfactory explanation or undue prejudice; specific discovery of the plaintiff's application for the building licence was ordered as directly relevant to the illegality defence; directions and timelines for filing the re-amended pleadings and witness statements were set.

Court Disposition

Application partially granted and partially refused: leave to re-amend granted in specified respects; some proposed re-amendments refused; order for specific discovery granted; permission to file further witness statements granted; trial dates to be vacated/adjusted.

Orders

  • Leave granted to defendant to re-amend the defence and counterclaim as specified in the judgment and to file and serve the re-amended documents within 7 days from judgment date
  • Leave granted to the plaintiff, Tecco and Mr Chan to file and serve re-amended reply and defence to counterclaim within 28 days thereafter