TSUI YIN FONG AND ANOTHER v. EDWARD JOHNSON

TSUI YIN FONG AND ANOTHER v. EDWARD JOHNSON

Leave to appeal was refused because the defendant failed to show a reasonable prospect of success or special grounds in the interests of justice under s63A(2); the further evidence did not meet the Ladd v Marshall requirements and could have been obtained with reasonable diligence; the alleged oral settlement was inherently uncertain and unenforceable and there was insufficient detrimental reliance; the application to introduce a counterclaim was refused because the cause of action arose after judgment and cannot operate as equitable set-off or reopen the summary judgment.

Citation
TSUI YIN FONG AND ANOTHER v. EDWARD JOHNSON
Parties
1st Plaintiff: TSUI YIN FONG (Administrator of the estate of TSUI KOON BO); 2nd Plaintiff: TSUI MING WAI; Defendant: EDWARD JOHNSON
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
7 December 2012
Case Number
DCCJ4726/2011
Procedural Posture
District Court Tenancy Proceeding (post Summary Judgment Applications for Leave to Appeal and to Introduce Counterclaim) / Post Summary Judgment; Applications for Leave to Appeal and to File Counterclaim/summons Heard
Outcome
Applications dismissed: leave to appeal refused; application to accept counterclaim dismissed; no order as to costs of these applications (costs order nisi).
Legal Topics
Summary Judgment, Leave to Appeal, Stay of Execution, Settlement Agreement, Implied Terms, Detrimental Reliance/estoppel, Admission of Fresh Evidence on Appeal, Amendment of Pleadings, Equitable Set Off
Source Language
EN
Landlord and Tenant Contract Civil Procedure Equity Summary Judgment Leave to Appeal Stay of Execution Settlement Agreement +5 more

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Parties

TSUI YIN FONG (Administrator of the estate of TSUI KOON BO)

1st Plaintiff

TSUI MING WAI

2nd Plaintiff

EDWARD JOHNSON

Defendant

Procedural Posture

District Court Tenancy Proceeding (post Summary Judgment Applications for Leave to Appeal and to Introduce Counterclaim) / Post Summary Judgment; Applications for Leave to Appeal and to File Counterclaim/summons Heard

Legal Issues

  1. 1 Whether leave to appeal should be granted under s63A(2) District Court Ordinance
  2. 2 Whether further evidence may be admitted on appeal under O.59 r.10(2) and the Ladd v Marshall test
  3. 3 Whether an alleged oral settlement created a valid, certain and enforceable contract

Ratio Decidendi

Leave to appeal was refused because the defendant failed to show a reasonable prospect of success or special grounds in the interests of justice under s63A(2); the further evidence did not meet the Ladd v Marshall requirements and could have been obtained with reasonable diligence; the alleged oral settlement was inherently uncertain and unenforceable and there was insufficient detrimental reliance; the application to introduce a counterclaim was refused because the cause of action arose after judgment and cannot operate as equitable set-off or reopen the summary judgment.

Court Disposition

Applications dismissed: leave to appeal refused; application to accept counterclaim dismissed; no order as to costs of these applications (costs order nisi).

Orders

  • Dismissed summons dated 26 September 2012 (application to accept counterclaim for breach of alleged settlement agreement, damages and costs)
  • Dismissed summons dated 28 September 2012 (application for leave to appeal)