CHOY PO CHUN AND ANOTHER v. AU WING LUN

CHOY PO CHUN AND ANOTHER v. AU WING LUN

The master and the court have a general power to grant an extension of time to comply with O76 r5 even after pleadings have closed; the defendant's non‑compliance in this record was not a fundamental incurable irregularity and no irremediable prejudice was established; the master’s exercise of discretion to grant time was appropriate and should not be disturbed; retrospective leave to file the supplemental (7th) affirmation is warranted; striking out the defence and counterclaim was not justified.

Citation
CHOY PO CHUN AND ANOTHER v. AU WING LUN
Parties
Plaintiff: First Plaintiff (P1); Plaintiff: Second Plaintiff (P2); Defendant: Defendant (D)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
9 July 2014
Case Number
HCAP7/2010
Procedural Posture
Probate Action / Chambers Judgment on Interlocutory Applications (appeal Against Master's Order; Leave Summons; Striking Out Summons)
Outcome
Appeal dismissed; defendant granted retrospective leave; striking out summons dismissed; costs orders made as specified
Legal Topics
Affidavit of Testamentary Scripts, Extension of Time, Striking Out Pleadings, Retrospective Leave to File Affidavit, Burden of Proof in Will Disputes, Testamentary Capacity, Practice Directions
Source Language
EN
Probate Law Civil Procedure Court Practice Wills and Estates Affidavit of Testamentary Scripts Extension of Time Striking Out Pleadings Retrospective Leave to File Affidavit +3 more

Case Brief

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Parties

First Plaintiff (P1)

Plaintiff

Second Plaintiff (P2)

Plaintiff

Defendant (D)

Defendant

Procedural Posture

Probate Action / Chambers Judgment on Interlocutory Applications (appeal Against Master's Order; Leave Summons; Striking Out Summons)

Legal Issues

  1. 1 Whether the court/master has power to grant extension of time to comply with Order 76 rule 5 after pleadings closed
  2. 2 Whether the defendant's non‑compliance with O76 r5 constituted a fundamental incurable irregularity
  3. 3 Whether the defendant's defence and counterclaim should be set aside for irregularity/contumelious default

Ratio Decidendi

The master and the court have a general power to grant an extension of time to comply with O76 r5 even after pleadings have closed; the defendant's non‑compliance in this record was not a fundamental incurable irregularity and no irremediable prejudice was established; the master’s exercise of discretion to grant time was appropriate and should not be disturbed; retrospective leave to file the supplemental (7th) affirmation is warranted; striking out the defence and counterclaim was not justified.

Court Disposition

Appeal dismissed; defendant granted retrospective leave; striking out summons dismissed; costs orders made as specified

Orders

  • Plaintiffs' appeal dismissed
  • Defendant's Leave Summons allowed (retrospective leave to file the 7th affirmation granted)