CHAN MO GING v. LEUNG FONG KIU

CHAN MO GING v. LEUNG FONG KIU

The appeal is dismissed because the fresh evidence was either obtainable earlier, incredible or an afterthought and in any event did not raise a triable issue sufficient to defeat summary judgment; the Master did not err in refusing the adjournment; however the Court appointed the elder brother as guardian ad litem based on medical evidence of limited capacity relevant to litigation.

Citation
CHAN MO GING v. LEUNG FONG KIU
Parties
Plaintiff: CHAN MO GING; Defendant: LEUNG FONG KIU; Guardian Ad Litem: LEUNG FONG KEUNG
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
26 January 2011
Case Number
DCCJ2776/2010
Procedural Posture
Landlord and Tenant Possession and Mense Profits / Appeal From Master (hearing De Novo)
Outcome
Appeal dismissed; summary judgment for Plaintiff upheld; intended guardian ad litem appointed; interim stay of execution uplifted; costs ordered as set out below.
Legal Topics
Summary Judgment, Adjournment, Guardian Ad Litem Appointment, Admission of Fresh Evidence, Definition of Mentally Incapacitated Person, Service of Notice, Possession
Source Language
EN
Landlord and Tenant Civil Procedure Mental Capacity and Capacity to Litigate Summary Judgment Adjournment Guardian Ad Litem Appointment Admission of Fresh Evidence Definition of Mentally Incapacitated Person +2 more

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Parties

CHAN MO GING

Plaintiff

LEUNG FONG KIU

Defendant

LEUNG FONG KEUNG

Guardian Ad Litem

Procedural Posture

Landlord and Tenant Possession and Mense Profits / Appeal From Master (hearing De Novo)

Legal Issues

  1. 1 Whether the new evidence raises a triable issue sufficient to defeat summary judgment
  2. 2 Whether the Defendant is a mentally incapacitated person (MIP) within O.80 r.1 RDC and requires a guardian ad litem
  3. 3 Whether the Master erred in refusing a three month adjournment and in granting summary judgment

Ratio Decidendi

The appeal is dismissed because the fresh evidence was either obtainable earlier, incredible or an afterthought and in any event did not raise a triable issue sufficient to defeat summary judgment; the Master did not err in refusing the adjournment; however the Court appointed the elder brother as guardian ad litem based on medical evidence of limited capacity relevant to litigation.

Court Disposition

Appeal dismissed; summary judgment for Plaintiff upheld; intended guardian ad litem appointed; interim stay of execution uplifted; costs ordered as set out below.

Orders

  • Leung Fong Keung is appointed as the Defendant's guardian ad litem in handling all matters related to the legal proceedings in this action.
  • The appeal against the Order of Master K.K. Pang dated 29 October 2010 giving judgment to the Plaintiff is dismissed.