IMADA LUENWAH WORLD LTD v. YIP MING CHEONG AND ANOTHER

IMADA LUENWAH WORLD LTD v. YIP MING CHEONG AND ANOTHER

The court exercised discretion to balance prejudice and fairness: it granted leave to file the Re-Amended Writ out of time due to prior master order and oversight, refused the late amendment to the Reply and Defence to Counterclaim because it constituted a new positive defence introduced at the eleventh hour without adequate explanation, particularity or available evidence and would unfairly deprive the other party of cross-examination, and allowed an expurgated affirmation of the ill witness to be read under Order 38 r 2 because it did not introduce new matters beyond the existing witness statement and the witness was medically unfit to attend, thereby minimizing prejudice while...

Citation
IMADA LUENWAH WORLD LTD v. YIP MING CHEONG AND ANOTHER
Parties
Plaintiff (dccj5540) / Defendant (dccj6521): Imada Luenwah World Ltd.; Defendant (dccj5540) / Plaintiff (dccj6521): Yip Ming Cheong; Defendant (dccj5540) / Plaintiff (dccj6521): Wong Chi Nang
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
18 July 2006
Case Number
DCCJ5540/2003
Procedural Posture
Civil / Trial Interlocutory Applications
Outcome
Application partly granted and partly dismissed: leave granted to file Re-Amended Writ out of time and to read an expurgated affirmation; application to amend Reply and Defence to Counterclaim and adjournment refused.
Legal Topics
Amendment of Pleadings, Late Filing, Adjournment, Admission of Affidavit/affirmation in Lieu of Oral Testimony, Prejudice and Costs, Medical Unfitness to Testify
Source Language
EN
Civil Procedure Contract Law Evidence Amendment of Pleadings Late Filing Adjournment Admission of Affidavit/affirmation in Lieu of Oral Testimony Prejudice and Costs +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 8 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Imada Luenwah World Ltd.

Plaintiff (dccj5540) / Defendant (dccj6521)

Yip Ming Cheong

Defendant (dccj5540) / Plaintiff (dccj6521)

Wong Chi Nang

Defendant (dccj5540) / Plaintiff (dccj6521)

Procedural Posture

Civil / Trial Interlocutory Applications

Legal Issues

  1. 1 Whether leave should be granted to file and serve an affirmation of key witness out of time and to have it read at trial
  2. 2 Whether leave should be granted to file Re-Amended Writ and Statement of Claim out of time
  3. 3 Whether leave should be granted to amend Reply and Defence to Counterclaim at trial to add a new positive defence

Ratio Decidendi

The court exercised discretion to balance prejudice and fairness: it granted leave to file the Re-Amended Writ out of time due to prior master order and oversight, refused the late amendment to the Reply and Defence to Counterclaim because it constituted a new positive defence introduced at the eleventh hour without adequate explanation, particularity or available evidence and would unfairly deprive the other party of cross-examination, and allowed an expurgated affirmation of the ill witness to be read under Order 38 r 2 because it did not introduce new matters beyond the existing witness statement and the witness was medically unfit to attend, thereby minimizing prejudice while...

Court Disposition

Application partly granted and partly dismissed: leave granted to file Re-Amended Writ out of time and to read an expurgated affirmation; application to amend Reply and Defence to Counterclaim and adjournment refused.

Orders

  • Leave granted to Imada to file the Re-Amended Writ and Statement of Claim out of time (order in terms of paragraph 2 of the summons)
  • Application to amend the Reply and Defence to Counterclaim (paragraph 3 of the summons) dismissed