PEACE MARK (HOLDINGS) LTD (IN LIQUIDATION) AND ANOTHER v. CHAU CHAM WONG PATRICK AND OTHERS

PEACE MARK (HOLDINGS) LTD (IN LIQUIDATION) AND ANOTHER v. CHAU CHAM WONG PATRICK AND OTHERS

The court allowed the proposed amendments because the contested matters were either already pleaded (against Tsang) or reflected in the List of Agreed Issues, the lateness was attributable to an understandable oversight, and no real prejudice was shown that could not be compensated by costs; however Amendment (i) was refused as regards Leung because he was not relying on Article 166 and permitting it would unfairly move the goalposts against him at a late stage.

Citation
[2022] HKCFI 1623
Parties
1st Plaintiff: PEACE MARK (HOLDINGS) LIMITED (IN LIQUIDATION); 2nd Plaintiff: PEACE MARK LIMITED (IN LIQUIDATION); 1st Defendant: CHAU CHAM WONG PATRICK; 2nd Defendant: LEUNG YUNG; 3rd Defendant: TSANG KWONG CHIU KEVIN; 4th Defendant: MAN KWOK KEUNG; 5th Defendant: CHENG KWAN LING; 8th Defendant: SUSAN SO; 9th Defendant: KWOK PING KI ALBERT; 10th Defendant: TANG YAT KAN; 11th Defendant: WONG YEE SUI ANDREW; 12th Defendant: MAK SIU WING CLIFFORD
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 May 2022
Case Number
HCA2371/2009
Procedural Posture
Application to Amend Pleadings / Interlocutory (application for Leave to Amend Re‑amended Statement of Claim)
Outcome
Leave granted to amend the Re‑Amended Statement of Claim in the two proposed respects, except Amendment (i) is not permitted as regards the 2nd Defendant (Leung). The court will hear parties on the appropriate order to be made (including costs).
Legal Topics
Amendment of Pleadings, Wilful Default/wilful Negligence, Dividend Declaration, Solvency Vs Loss, Pleading Adequacy, Prejudice and Costs
Source Language
EN
Company Law Civil Procedure Directors' Duties Insolvency Fraud Amendment of Pleadings Wilful Default/wilful Negligence Dividend Declaration +3 more

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Parties

PEACE MARK (HOLDINGS) LIMITED (IN LIQUIDATION)

1st Plaintiff

PEACE MARK LIMITED (IN LIQUIDATION)

2nd Plaintiff

CHAU CHAM WONG PATRICK

1st Defendant

LEUNG YUNG

2nd Defendant

TSANG KWONG CHIU KEVIN

3rd Defendant

MAN KWOK KEUNG

4th Defendant

CHENG KWAN LING

5th Defendant

SUSAN SO

8th Defendant

KWOK PING KI ALBERT

9th Defendant

TANG YAT KAN

10th Defendant

WONG YEE SUI ANDREW

11th Defendant

MAK SIU WING CLIFFORD

12th Defendant

Procedural Posture

Application to Amend Pleadings / Interlocutory (application for Leave to Amend Re‑amended Statement of Claim)

Legal Issues

  1. 1 Whether leave should be granted to amend the Re‑Amended Statement of Claim to plead wilful negligence/wilful default in response to reliance on Article 166
  2. 2 Whether leave should be granted to plead that the 1st Plaintiff was suffering losses and was insolvent at the time dividends were declared
  3. 3 Whether the late application causes unfair prejudice to defendants (Leung and Tsang) that cannot be compensated by costs

Ratio Decidendi

The court allowed the proposed amendments because the contested matters were either already pleaded (against Tsang) or reflected in the List of Agreed Issues, the lateness was attributable to an understandable oversight, and no real prejudice was shown that could not be compensated by costs; however Amendment (i) was refused as regards Leung because he was not relying on Article 166 and permitting it would unfairly move the goalposts against him at a late stage.

Court Disposition

Leave granted to amend the Re‑Amended Statement of Claim in the two proposed respects, except Amendment (i) is not permitted as regards the 2nd Defendant (Leung). The court will hear parties on the appropriate order to be made (including costs).

Orders

  • Leave granted to amend the Re‑Amended Statement of Claim to plead wilful negligence/wilful default and to plead that the 1st Plaintiff was suffering losses and insolvent at the time dividends were declared, except that Amendment (i) is refused as regards Leung Yung.
  • Hearing to be listed to determine the precise order to be made, including costs and any consequential directions.