CHUNG LAI PING ISABETHLA AND ANOTHER v. WIN UNITED DEVELOPMENT LTD

CHUNG LAI PING ISABETHLA AND ANOTHER v. WIN UNITED DEVELOPMENT LTD

The court struck out the parts of the counterclaim seeking to set aside the resale to the Chans and the pleading denying Win United breached the agreement because (1) the interlocutory judgment established Win United's breach making that denial res judicata, and (2) even assuming facts in Win United's favour, the...

Source-derived case information.

Citation
CHUNG LAI PING ISABETHLA AND ANOTHER v. WIN UNITED DEVELOPMENT LTD
Parties
Plaintiff (original Action); 1st Defendant (counterclaim): CHUNG LAI PING ISABETHLA; Plaintiff (original Action); 1st Defendant (counterclaim): CHUNG KAM YIU FERGUS; Defendant (original Action); Plaintiff (counterclaim): WIN UNITED DEVELOPMENT LIMITED; 2nd Defendant (counterclaim): CHAN LIN FA
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
22 May 2003
Case Number
DCCJ2416/2002
Procedural Posture
Civil Action Contract Dispute in District Court / Hearing of Strike Out Summonses and Ancillary Applications in Chambers; Judgment on Summonses Following Interlocutory Judgment of 7 Nov 2002
Outcome
Partial strike out of counterclaim; denial of breach struck out as res judicata; prayer to set aside resale struck out; plea contesting entitlement to damages preserved; lis pendens vacated; ancillary costs directions made (orders nisi in part).
Legal Topics
Forfeiture of Deposit, Mitigation of Loss, Strike Out Pleadings (o.18 R.19 Rdc), Res Judicata / Effect of Interlocutory Judgment, Lis Pendens, Security for Costs
Source Language
en
Contract Civil Procedure Property Law Forfeiture of Deposit Mitigation of Loss Strike Out Pleadings (o.18 R.19 Rdc) Res Judicata / Effect of Interlocutory Judgment Lis Pendens +1 more

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Parties

CHUNG LAI PING ISABETHLA

Plaintiff (original Action); 1st Defendant (counterclaim)

CHUNG KAM YIU FERGUS

Plaintiff (original Action); 1st Defendant (counterclaim)

WIN UNITED DEVELOPMENT LIMITED

Defendant (original Action); Plaintiff (counterclaim)

CHAN LIN FA

2nd Defendant (counterclaim)

Procedural Posture

Civil Action Contract Dispute in District Court / Hearing of Strike Out Summonses and Ancillary Applications in Chambers; Judgment on Summonses Following Interlocutory Judgment of 7 Nov 2002

Legal Issues

  1. 1 Whether the counterclaim discloses a cause of action or is bound to fail under O.18 r.19 RDC
  2. 2 Whether HK$520,000 paid was a genuine deposit amenable to forfeiture or part payment recoverable
  3. 3 Whether the subsequent sale to Chan Lin Fa was a sham/void or at such undervalue as to justify setting it aside

Ratio Decidendi

The court struck out the parts of the counterclaim seeking to set aside the resale to the Chans and the pleading denying Win United breached the agreement because (1) the interlocutory judgment established Win United's breach making that denial res judicata, and (2) even assuming facts in Win United's favour, the alleged undervalue of the resale is a matter for quantum/assessment and does not disclose a cause of action to set aside the conveyance; however the plea challenging entitlement to claim loss (including issues of deposit forfeiture and mitigation) was left on the record to be determined at assessment.

Court Disposition

Partial strike out of counterclaim; denial of breach struck out as res judicata; prayer to set aside resale struck out; plea contesting entitlement to damages preserved; lis pendens vacated; ancillary costs directions made (orders nisi in part).

Orders

  • Strike out paragraph 3 of the prayer against the Chungs seeking to set aside the sale to Chan Lin Fa
  • Strike out paragraph 1 of the prayer against the Chans seeking to set aside that sale