CHEVALIER (E&M CONTRACTING) LTD v. ROTEGEAR DEVELOPMENT LTD AND OTHERS

CHEVALIER (E&M CONTRACTING) LTD v. ROTEGEAR DEVELOPMENT LTD AND OTHERS

The court found that the plaintiff’s prolonged inaction, the absence of explanation and the course of conduct following framing of issues and pre‑trial steps demonstrated that the plaintiff had no real intention to prosecute the action as constituted; that conduct amounted to an abuse of process in the exceptional sense required by the authorities; accordingly the plaintiff’s claim was dismissed as an abuse of process.

Citation
CHEVALIER (E&M CONTRACTING) LTD v. ROTEGEAR DEVELOPMENT LTD AND OTHERS
Parties
Plaintiff: Chevalier (E&M Contracting) Ltd; 1st Defendant: Rotegear Development Ltd; 2nd Defendant: Ng Fuk Lung; 3rd Defendant: Ng Fuk Hing, Tommy; 4th Defendant: Ngai Man Fai; 5th Defendant: Wong Yan Wai, Hugh
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
9 June 2005
Case Number
HCA1717/1990
Procedural Posture
Civil Contract/guarantee / Chambers Strike‑out Application (abuse of Process / Want of Prosecution)
Outcome
Plaintiff's claim dismissed as an abuse of process
Legal Topics
Strike Out, Want of Prosecution, Abuse of Process, Set Off, Personal Guarantee, Condition Precedent, Summary Judgment
Source Language
EN
Civil Procedure Contract Guarantee Insolvency/company (dissolution) Evidence Strike Out Want of Prosecution Abuse of Process +4 more

Case Brief

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Parties

Chevalier (E&M Contracting) Ltd

Plaintiff

Rotegear Development Ltd

1st Defendant

Ng Fuk Lung

2nd Defendant

Ng Fuk Hing, Tommy

3rd Defendant

Ngai Man Fai

4th Defendant

Wong Yan Wai, Hugh

5th Defendant

Procedural Posture

Civil Contract/guarantee / Chambers Strike‑out Application (abuse of Process / Want of Prosecution)

Legal Issues

  1. 1 Whether the plaintiff should be struck out for want of prosecution/inordinate and inexcusable delay
  2. 2 Whether the plaintiff's conduct amounted to an abuse of process because it had no real intention to prosecute to trial
  3. 3 Whether a written request was a condition precedent to liability under the personal guarantee

Ratio Decidendi

The court found that the plaintiff’s prolonged inaction, the absence of explanation and the course of conduct following framing of issues and pre‑trial steps demonstrated that the plaintiff had no real intention to prosecute the action as constituted; that conduct amounted to an abuse of process in the exceptional sense required by the authorities; accordingly the plaintiff’s claim was dismissed as an abuse of process.

Court Disposition

Plaintiff's claim dismissed as an abuse of process

Orders

  • Plaintiff's claim dismissed
  • No order made as to the 5th defendant's counterclaim (summons did not cover counterclaim and no submissions made)