HUNG SZE FAI v. TIN SHUI WAI DEVELOPMENT LTD AND ANOTHER

HUNG SZE FAI v. TIN SHUI WAI DEVELOPMENT LTD AND ANOTHER

The court refused to order separate trial of the preliminary issue and refused stays because the disputed factual issues (completion as at 31 December 1997 and the solicitors' advice) and likely discovery and witness evidence meant a split trial would not be just and convenient; it would increase delay, costs, risk prejudice to a fair trial and multiply appeals. Accordingly applications for separate preliminary trial and for stays were refused and directions were ordered for consolidated progression of the matters.

Citation
HUNG SZE FAI v. TIN SHUI WAI DEVELOPMENT LTD AND ANOTHER
Parties
Plaintiff/defendant: Tin Shui Wai Development Limited; Solicitors (2nd Defendant/third Party): Baker & McKenzie; Solicitors (2nd Defendant): Stikeman Elliott (a firm); Plaintiffs: Lau Chung Fai; Lam Man Yee; Plaintiff: Cheng Chi Lung; Plaintiffs: Various individual purchasers (multiple actions)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 July 2006
Case Number
HCA4736/2003
Procedural Posture
Civil: Contract and Professional Negligence Arising From Sale and Purchase of Uncompleted Residential Units / Ruling on Applications for Trial of a Preliminary Issue, Applications to Stay Proceedings and Directions; Interlocutory Stage With Directions Hearing Adjourned
Outcome
Solicitors' applications for separate trial of the preliminary issue (HCA 4610 and 4737) refused; applications for stay of the other proceedings dismissed; directions hearing adjourned; costs to be dealt with at directions hearing.
Legal Topics
Rescission, Completion of Development, Preliminary Issue Trial, Stay of Proceedings, Strike Out, Discovery
Source Language
EN
Contract Law Professional Negligence Civil Procedure Property Law Rescission Completion of Development Preliminary Issue Trial Stay of Proceedings +2 more

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Parties

Tin Shui Wai Development Limited

Plaintiff/defendant

Baker & McKenzie

Solicitors (2nd Defendant/third Party)

Stikeman Elliott (a firm)

Solicitors (2nd Defendant)

Lau Chung Fai; Lam Man Yee

Plaintiffs

Cheng Chi Lung

Plaintiff

Various individual purchasers (multiple actions)

Plaintiffs

Procedural Posture

Civil: Contract and Professional Negligence Arising From Sale and Purchase of Uncompleted Residential Units / Ruling on Applications for Trial of a Preliminary Issue, Applications to Stay Proceedings and Directions; Interlocutory Stage With Directions Hearing Adjourned

Legal Issues

  1. 1 Whether the Development was complete as at 31 December 1997 for the purposes of clause 4(1)(c) of the Sale and Purchase Agreement
  2. 2 Whether a right of rescission pursuant to clause 4(4)(a) accrued to purchasers on 1 January 1998
  3. 3 Whether the solicitors owed and breached a duty to advise and remind purchasers such that rescission rights were preserved

Ratio Decidendi

The court refused to order separate trial of the preliminary issue and refused stays because the disputed factual issues (completion as at 31 December 1997 and the solicitors' advice) and likely discovery and witness evidence meant a split trial would not be just and convenient; it would increase delay, costs, risk prejudice to a fair trial and multiply appeals. Accordingly applications for separate preliminary trial and for stays were refused and directions were ordered for consolidated progression of the matters.

Court Disposition

Solicitors' applications for separate trial of the preliminary issue (HCA 4610 and 4737) refused; applications for stay of the other proceedings dismissed; directions hearing adjourned; costs to be dealt with at directions hearing.

Orders

  • Refuse solicitors' applications for trial of the preliminary issue in HCA 4610 and HCA 4737
  • Dismiss applications to stay the other listed proceedings pending determination of the preliminary issue