KWAN YING KUEN ERIC v. YAU LEONG SAU AND OTHERS

KWAN YING KUEN ERIC v. YAU LEONG SAU AND OTHERS

The court held the defendants' counterclaim arose from a separate and distinct transaction (alleged failure to issue bills while acting as a solicitor) and was not a set-off to the plaintiff's tax overpayment; accordingly final judgment for the plaintiff for HKD 75,697.72 was entered without a stay. The counterclaim was not obviously unsustainable and therefore was not struck out; amendments to the counterclaim were allowed and the defendants were ordered to provide specified further particulars.

Citation
KWAN YING KUEN ERIC v. YAU LEONG SAU AND OTHERS
Parties
Plaintiff: KWAN YING KUEN ERIC; 1st Defendant: YAU LEONG SAU; 2nd Defendant: TAO TSZ KIN BENJAMIN; 3rd Defendant: CHAN, WONG & LAM (sued as a firm)
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
17 September 2014
Case Number
DCCJ3936/2013
Procedural Posture
Civil Action / Hearing and Decision on Summary Judgment and Interlocutory Applications (striking Out, Particulars, Amendment)
Outcome
Final judgment for plaintiff for HKD 75,697.72 with pre-trial and judgment interest; defendants' application to strike out dismissed; defendants granted leave to amend pleadings; defendants ordered to supply particulars; costs allocated.
Legal Topics
Summary Judgment, Striking Out, Further and Better Particulars, Amendment of Pleadings, Set Off/counterclaim, Fiduciary Duty, Costs
Source Language
EN
Civil Procedure Partnership Law Professional Negligence/solicitors' Duties Tax (profits Tax) Summary Judgment Striking Out Further and Better Particulars Amendment of Pleadings +3 more

Case Brief

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Parties

KWAN YING KUEN ERIC

Plaintiff

YAU LEONG SAU

1st Defendant

TAO TSZ KIN BENJAMIN

2nd Defendant

CHAN, WONG & LAM (sued as a firm)

3rd Defendant

Procedural Posture

Civil Action / Hearing and Decision on Summary Judgment and Interlocutory Applications (striking Out, Particulars, Amendment)

Legal Issues

  1. 1 Whether summary judgment for overpaid profits tax should be stayed pending determination of defendants' counterclaim
  2. 2 Whether the defendants' counterclaim should be struck out as disclosinog no reasonable cause of action
  3. 3 Whether the defendants should be permitted to amend their defence and counterclaim

Ratio Decidendi

The court held the defendants' counterclaim arose from a separate and distinct transaction (alleged failure to issue bills while acting as a solicitor) and was not a set-off to the plaintiff's tax overpayment; accordingly final judgment for the plaintiff for HKD 75,697.72 was entered without a stay. The counterclaim was not obviously unsustainable and therefore was not struck out; amendments to the counterclaim were allowed and the defendants were ordered to provide specified further particulars.

Court Disposition

Final judgment for plaintiff for HKD 75,697.72 with pre-trial and judgment interest; defendants' application to strike out dismissed; defendants granted leave to amend pleadings; defendants ordered to supply particulars; costs allocated.

Orders

  • Final judgment entered for the plaintiff for HKD 75,697.72 with pre-trial interest from date of writ to judgment and thereafter judgment interest until payment
  • No stay of execution of the judgment