YIM TIN FOOK AND ANOTHER v. YU CHOR LAI AND OTHERS

YIM TIN FOOK AND ANOTHER v. YU CHOR LAI AND OTHERS

The court held the proposed amended pleading (purple version) disclosed an arguable cause of action in breach of trust against D8 notwithstanding non-registration of the lease; the claim is not necessarily statute-barred because Limitation Ordinance provisions and discovery/fraud rules may postpone accrual; striking out was inappropriate where amendment could cure the claim, therefore the appeal was allowed and leave to amend granted.

Citation
YIM TIN FOOK AND ANOTHER v. YU CHOR LAI AND OTHERS
Parties
1st Plaintiff: YIM TIN FOOK; 2nd Plaintiff: YIM TIN YAU; 1st Defendant (original Action): YU CHOR LAI, KONG WAI HUNG and SOU KA LUN trading as WANG CHEUNG INDUSTRIAL CHEMICALS CO.; 2nd Defendant (original Action); Plaintiff (by Counterclaim): TO CHEONG LAM; Plaintiff (counterclaim): TO CHEONG LAM; 1st Defendant (by Counterclaim): YIM TIN FOOK; 2nd Defendant (by Counterclaim); 2nd Defendant by Original Action and Plaintiff by Counterclaim (appellant): YIM TIN YAU; 3rd Defendant (by Counterclaim): CHAN HI; 4th Defendant (by Counterclaim): YEUNG HONG SANG; 5th Defendant (by Counterclaim): CHAN WAI KIN and PO YUEN KWAN SHIRLEY; 6th Defendant (by Counterclaim): LEUNG KWAN POK KEN; 7th Defendant (by Counterclaim): W.S. REALTY COMPANY LIMITED; 8th Defendant (by Counterclaim): TO SHUI KI; 9th Defendant (by Counterclaim): WU CHUN WAI
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 June 2015
Case Number
HCA2613/2006
Procedural Posture
Civil Action (possession and Counterclaim Involving Title to Land, Trusts and Equitable Claims) / Appeal From Master\'s Striking Out Order in Chambers; Decision on Leave to Amend and Appeal Heard 2 June 2015, Decision 10 June 2015
Outcome
Appeal allowed; Master\'s order striking out set aside; leave to amend granted.
Legal Topics
Breach of Trust, Amendment of Pleadings, Strike Out, Counterclaim, Registration of Land Interests, Bona Fide Purchaser, Limitation Period
Source Language
EN
Property Law Trusts and Equity Civil Procedure Limitation Law Breach of Trust Amendment of Pleadings Strike Out Counterclaim +3 more

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Parties

YIM TIN FOOK

1st Plaintiff

YIM TIN YAU

2nd Plaintiff

YU CHOR LAI, KONG WAI HUNG and SOU KA LUN trading as WANG CHEUNG INDUSTRIAL CHEMICALS CO.

1st Defendant (original Action)

TO CHEONG LAM

2nd Defendant (original Action); Plaintiff (by Counterclaim)

TO CHEONG LAM

Plaintiff (counterclaim)

YIM TIN FOOK

1st Defendant (by Counterclaim)

YIM TIN YAU

2nd Defendant (by Counterclaim); 2nd Defendant by Original Action and Plaintiff by Counterclaim (appellant)

CHAN HI

3rd Defendant (by Counterclaim)

YEUNG HONG SANG

4th Defendant (by Counterclaim)

CHAN WAI KIN and PO YUEN KWAN SHIRLEY

5th Defendant (by Counterclaim)

LEUNG KWAN POK KEN

6th Defendant (by Counterclaim)

W.S. REALTY COMPANY LIMITED

7th Defendant (by Counterclaim)

TO SHUI KI

8th Defendant (by Counterclaim)

WU CHUN WAI

9th Defendant (by Counterclaim)

Procedural Posture

Civil Action (possession and Counterclaim Involving Title to Land, Trusts and Equitable Claims) / Appeal From Master\'s Striking Out Order in Chambers; Decision on Leave to Amend and Appeal Heard 2 June 2015, Decision 10 June 2015

Legal Issues

  1. 1 Whether D8 acted in breach of trust in assigning the land to WS Realty contrary to D2/P\'s equitable interest
  2. 2 Whether D2/P\'s claim for breach of trust is time-barred
  3. 3 Whether D8 is a necessary party to the counterclaim and whether the proposed amendment (purple version) should be permitted on appeal

Ratio Decidendi

The court held the proposed amended pleading (purple version) disclosed an arguable cause of action in breach of trust against D8 notwithstanding non-registration of the lease; the claim is not necessarily statute-barred because Limitation Ordinance provisions and discovery/fraud rules may postpone accrual; striking out was inappropriate where amendment could cure the claim, therefore the appeal was allowed and leave to amend granted.

Court Disposition

Appeal allowed; Master\'s order striking out set aside; leave to amend granted.

Orders

  • Leave granted to D2/P to file and serve the amended defence and counterclaim (purple version) on D8 within 7 days of decision
  • D8 to have 14 days to amend his defence to the counterclaim