CHENG KIT YEE v. MODERN BEAUTY SALON (HK) LTD AND OTHERS

CHENG KIT YEE v. MODERN BEAUTY SALON (HK) LTD AND OTHERS

The strike‑out application failed because it was not plain and obvious that the Statement of Claim was unsustainable: Clause 10 may be ineffective under Cap.71 as to personal injury and breach, disputed facts must be taken in the plaintiff's favour, and there was a tenable case against the defendants (including agency/negligence), therefore the claim requires trial.

Citation
CHENG KIT YEE v. MODERN BEAUTY SALON (HK) LTD AND OTHERS
Parties
Plaintiff: CHENG KIT YEE; 1st Defendant: MODERN BEAUTY SALON (HK) LIMITED; 2nd Defendant: KIN YIK BIOMEDICAL TECHNOLOGY LIMITED; Third Party: KOH IK SOO
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
19 July 2011
Case Number
DCPI395/2010
Procedural Posture
Personal Injury / Strike‑out Application Under Order 18 Rule 19 (pre‑trial)
Outcome
Summons to strike out dismissed; costs reserved
Legal Topics
Exemption Clauses, Control of Exemption Clauses Ordinance (cap.71), Negligence, Agency, Parol Evidence Rule, Strike‑out for Frivolous or Vexatious Proceedings
Source Language
EN
Contract Tort Civil Procedure Regulatory/consumer Protection Exemption Clauses Control of Exemption Clauses Ordinance (cap.71) Negligence Agency +2 more

Case Brief

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Parties

CHENG KIT YEE

Plaintiff

MODERN BEAUTY SALON (HK) LIMITED

1st Defendant

KIN YIK BIOMEDICAL TECHNOLOGY LIMITED

2nd Defendant

KOH IK SOO

Third Party

Procedural Posture

Personal Injury / Strike‑out Application Under Order 18 Rule 19 (pre‑trial)

Legal Issues

  1. 1 Whether the plaintiff's claim is scandalous, frivolous or vexatious or an abuse of process
  2. 2 Whether Clause 10 of the defendant's Rules and Regulations is an effective exclusion clause preventing liability for personal injury
  3. 3 Whether the Control of Exemption Clauses Ordinance (Cap.71) invalidates Clause 10 as to personal injury or breach of contract

Ratio Decidendi

The strike‑out application failed because it was not plain and obvious that the Statement of Claim was unsustainable: Clause 10 may be ineffective under Cap.71 as to personal injury and breach, disputed facts must be taken in the plaintiff's favour, and there was a tenable case against the defendants (including agency/negligence), therefore the claim requires trial.

Court Disposition

Summons to strike out dismissed; costs reserved

Orders

  • Summons to strike out dated 21 April 2011 dismissed.
  • Costs to be heard.