YIP MING CHEONG AND ANOTHER v. IMADA LUENWAH WORLD LTD

YIP MING CHEONG AND ANOTHER v. IMADA LUENWAH WORLD LTD

The court granted leave to file the Re-Amended Writ and Statement of Claim out of time but refused the late amendment to the Reply and Defence to Counterclaim and refused adjournment. The court held the proposed amendment was a new positive defence made too late without satisfactory explanation or particularity, would cause prejudice because the supporting witness would not be available for cross-examination, and could not be cured by costs or adjournment. The court permitted an expurgated affirmation of the ill witness to be read under Order 38 rule 2 because it was substantially the same as his earlier witness statement and the balance of prejudice favoured allowing the evidence to be...

Citation
YIP MING CHEONG AND ANOTHER v. IMADA LUENWAH WORLD LTD
Parties
Plaintiff (dccj5540) / Defendant (dccj6521): Imada Luenwah World Ltd.; Defendant (dccj5540) / Plaintiff (dccj6521): Yip Ming Cheong; Defendant (dccj5540) / Plaintiff (dccj6521): Wong Chi Nang (trading as Mei-King Machinery Engineering)
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
18 July 2006
Case Number
DCCJ6521/2003
Procedural Posture
Civil (contract / Debt) / Trial — Interlocutory Application (application to Amend Pleadings, to File Late and to Adduce Affirmation)
Outcome
Application partially granted and partially dismissed: allowed late filing of Re-Amended Writ and Statement of Claim; dismissed application to amend Reply and Defence to Counterclaim; refused adjournment; allowed expurgated affirmation of Suen Ching to be read at trial under Order 38 rule 2; costs awarded to...
Legal Topics
Amendment of Pleadings, Adjournment, Late Filing, Reading of Affirmation Under Order 38 Rule 2, Particularity of Pleadings, Prejudice and Cross Examination, Costs
Source Language
EN
Civil Procedure Contract Evidence Civil Costs Amendment of Pleadings Adjournment Late Filing Reading of Affirmation Under Order 38 Rule 2 +3 more

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Parties

Imada Luenwah World Ltd.

Plaintiff (dccj5540) / Defendant (dccj6521)

Yip Ming Cheong

Defendant (dccj5540) / Plaintiff (dccj6521)

Wong Chi Nang (trading as Mei-King Machinery Engineering)

Defendant (dccj5540) / Plaintiff (dccj6521)

Procedural Posture

Civil (contract / Debt) / Trial — Interlocutory Application (application to Amend Pleadings, to File Late and to Adduce Affirmation)

Legal Issues

  1. 1 Whether to allow filing of Re-Amended Writ and Statement of Claim out of time
  2. 2 Whether to allow a late amendment to the Reply and Defence to Counterclaim at trial to introduce a new positive defence
  3. 3 Whether to adjourn the trial to obtain and receive further medical evidence and an affirmation from an ill witness

Ratio Decidendi

The court granted leave to file the Re-Amended Writ and Statement of Claim out of time but refused the late amendment to the Reply and Defence to Counterclaim and refused adjournment. The court held the proposed amendment was a new positive defence made too late without satisfactory explanation or particularity, would cause prejudice because the supporting witness would not be available for cross-examination, and could not be cured by costs or adjournment. The court permitted an expurgated affirmation of the ill witness to be read under Order 38 rule 2 because it was substantially the same as his earlier witness statement and the balance of prejudice favoured allowing the evidence to be...

Court Disposition

Application partially granted and partially dismissed: allowed late filing of Re-Amended Writ and Statement of Claim; dismissed application to amend Reply and Defence to Counterclaim; refused adjournment; allowed expurgated affirmation of Suen Ching to be read at trial under Order 38 rule 2; costs awarded to...

Orders

  • Leave granted to file Re-Amended Writ and Statement of Claim out of time
  • Application to amend Reply and Defence to Counterclaim dismissed