KOT SEE FOR v. LAM MAN CHEUNG AND OTHERS

KOT SEE FOR v. LAM MAN CHEUNG AND OTHERS

The Master’s dismissal of the 3rd defendant’s strike-out application is upheld: on the pleaded facts the plaintiff has an arguable cause of action in restitution and constructive trust for HK$34.6 million and traceable benefits; it is not plain and obvious on the affirmation evidence that the plaintiff's case is...

Source-derived case information.

Citation
[2021] HKCFI 1029
Parties
Plaintiff: Kot See For; 1st Defendant: Lam Man Cheung; 2nd Defendant: Tang Kwok Pang; 3rd Defendant: Au Yeung Ho Sum
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 April 2021
Case Number
HCA743/2019
Procedural Posture
Civil Action (appeal Against Master's Dismissal of Strike Out Application) / Appeal Determined on Paper (decision)
Outcome
Appeal dismissed; Master’s order upheld; action against 3rd defendant to proceed to trial; costs order nisi made against 3rd defendant
Legal Topics
Strike Out Application, Fraudulent Misrepresentation, Unjust Enrichment, Constructive Trust, Tracing, Rescission, Money Lenders Ordinance, Failure of Consideration
Source Language
en
Civil Fraud Equity Restitution Commercial Law Civil Procedure Strike Out Application Fraudulent Misrepresentation Unjust Enrichment +5 more

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Parties

Kot See For

Plaintiff

Lam Man Cheung

1st Defendant

Tang Kwok Pang

2nd Defendant

Au Yeung Ho Sum

3rd Defendant

Procedural Posture

Civil Action (appeal Against Master's Dismissal of Strike Out Application) / Appeal Determined on Paper (decision)

Legal Issues

  1. 1 Whether the Amended Statement of Claim discloses a reasonable cause of action against the 3rd defendant for HK$34.6 million and traceable benefits
  2. 2 Whether the claim should be struck out as plain and obvious, frivolous, vexatious or an abuse of process
  3. 3 Whether restitution/unjust enrichment claim can succeed against a recipient who received payment directed by another party

Ratio Decidendi

The Master’s dismissal of the 3rd defendant’s strike-out application is upheld: on the pleaded facts the plaintiff has an arguable cause of action in restitution and constructive trust for HK$34.6 million and traceable benefits; it is not plain and obvious on the affirmation evidence that the plaintiff's case is incontrovertibly false or a tissue of improbabilities and the issues raised require trial to resolve factual relationships and knowledge.

Court Disposition

Appeal dismissed; Master’s order upheld; action against 3rd defendant to proceed to trial; costs order nisi made against 3rd defendant

Orders

  • Appeal dismissed
  • Costs order nisi against the 3rd defendant