GREAT HARVEST PROPERTY INVESTMENT LTD v. HO FREEMAN CHI MAN AND OTHERS

GREAT HARVEST PROPERTY INVESTMENT LTD v. HO FREEMAN CHI MAN AND OTHERS

Leave to re-amend was refused because the proposed re-amendments alleged that the Company had discharged the purchasers and relied on Ho's promise to pay, which was directly inconsistent with the Company's continuing claim against the purchasers for the same deposits; the Company failed to show reasonable grounds...

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Citation
GREAT HARVEST PROPERTY INVESTMENT LTD v. HO FREEMAN CHI MAN AND OTHERS
Parties
Plaintiff: Company; 1st Defendant: MAN CHI MAN; 2nd and 3rd Defendants: MA ZHONGHONG; YANG QI
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
22 February 2012
Case Number
HCA560/2010
Procedural Posture
Civil Contract / Commercial (sale and Purchase of Property, Bills of Exchange) / Interlocutory Applications for Amendment and Striking Out (chambers Hearing)
Outcome
Company's summons for leave to re-amend dismissed; proposed re-amendments refused; Amended Statement of Claim struck out insofar as it related to the 1st defendant; Company's claims against the 1st defendant dismissed.
Legal Topics
Dishonour of Cheque, Standing/title to Sue on Negotiable Instruments, Amendment of Pleadings, Order 18 Rule 12 a, Statement of Truth, Striking Out for Failure to Plead Capacity to Sue
Source Language
en
Contract Law Procedural Law Commercial Law Bills of Exchange Law Civil Procedure Dishonour of Cheque Standing/title to Sue on Negotiable Instruments Amendment of Pleadings +3 more

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Parties

Company

Plaintiff

MAN CHI MAN

1st Defendant

MA ZHONGHONG; YANG QI

2nd and 3rd Defendants

Procedural Posture

Civil Contract / Commercial (sale and Purchase of Property, Bills of Exchange) / Interlocutory Applications for Amendment and Striking Out (chambers Hearing)

Legal Issues

  1. 1 Whether a non-holder plaintiff may sue on cheques presented and dishonoured
  2. 2 Whether the proposed re-amendments (pleading an absolute discharge and a promise by the drawer) are permissible under Order 18 r12A
  3. 3 Whether the plaintiff has adequately pleaded assignment/endorsement or other title to sue on the cheques

Ratio Decidendi

Leave to re-amend was refused because the proposed re-amendments alleged that the Company had discharged the purchasers and relied on Ho's promise to pay, which was directly inconsistent with the Company's continuing claim against the purchasers for the same deposits; the Company failed to show reasonable grounds for inconsistent alternative pleadings under Order 18 r12A and failed to verify by its own officers; further, the Company is not the holder of the cheques and had not pleaded any assignment/endorsement or other title to sue on the cheques, so the claim against the 1st defendant based solely on the cheques is struck out and dismissed as to him.

Court Disposition

Company's summons for leave to re-amend dismissed; proposed re-amendments refused; Amended Statement of Claim struck out insofar as it related to the 1st defendant; Company's claims against the 1st defendant dismissed.

Orders

  • Leave to re-amend refused; Company\'s summons for leave to re-amend dismissed with costs (including reserved costs) and certificate for counsel
  • Amended Statement of Claim struck out in so far as it relates to the 1st defendant; Company\'s claims against the 1st defendant dismissed with costs of the action and costs of the summons, with certificate for counsel (including costs reserved by Masters Ko and De Souza)