LAM PAK CHEUNG v. LIN ZHEN LUE AND OTHERS

LAM PAK CHEUNG v. LIN ZHEN LUE AND OTHERS

The original action was struck out as an abuse of the court's process because it is materially duplicative of the 2007 writ action, the subject matter is the same, the originating summons procedure was inappropriate given substantial disputed facts which ought to have been foreseen, and the plaintiff's maintenance...

Source-derived case information.

Citation
LAM PAK CHEUNG v. LIN ZHEN LUE AND OTHERS
Parties
Plaintiff: Lam Pak Cheung; 1st Defendant: Lin Zhen Lue; 2nd Defendant: Lin Jian Rong; 3rd Defendant: Lam Kwok Hung; 4th Defendant: PRC Realty Inc.; 5th Defendant: Pacrim International
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 July 2008
Case Number
HCMP1364/2006
Procedural Posture
HCMP 1364/2006 (miscellaneous Proceedings) / Chambers Hearing on Competing Summonses (application to Strike Out and Cross Application to Stay)
Outcome
Original action (HCMP 1364/2006) struck out as an abuse of process; Plaintiff's application for a stay dismissed.
Legal Topics
Abuse of Process, Strike Out, Stay, Originating Summons Vs Writ, Costs
Source Language
en
Civil Litigation Trusts and Equity Civil Procedure Abuse of Process Strike Out Stay Originating Summons Vs Writ Costs

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Parties

Lam Pak Cheung

Plaintiff

Lin Zhen Lue

1st Defendant

Lin Jian Rong

2nd Defendant

Lam Kwok Hung

3rd Defendant

PRC Realty Inc.

4th Defendant

Pacrim International

5th Defendant

Procedural Posture

HCMP 1364/2006 (miscellaneous Proceedings) / Chambers Hearing on Competing Summonses (application to Strike Out and Cross Application to Stay)

Legal Issues

  1. 1 Whether the original action (HCMP 1364/2006) is duplicative of HCA No.2499/2007 and an abuse of process
  2. 2 Whether the original action should be struck out or merely stayed pending determination of the writ action
  3. 3 Whether commencing by originating summons was appropriate given disputed facts and whether plaintiff sought to avoid adverse costs

Ratio Decidendi

The original action was struck out as an abuse of the court's process because it is materially duplicative of the 2007 writ action, the subject matter is the same, the originating summons procedure was inappropriate given substantial disputed facts which ought to have been foreseen, and the plaintiff's maintenance of the originating summons amounted to an attempt to avoid the incidence of adverse costs; accordingly the originating summons must be struck out rather than stayed.

Court Disposition

Original action (HCMP 1364/2006) struck out as an abuse of process; Plaintiff's application for a stay dismissed.

Orders

  • Strike out the originating summons proceedings in HCMP 1364/2006 as an abuse of the court's process
  • Dismiss the Plaintiff's cross-application for a stay of HCMP 1364/2006 pending determination of HCA No.2499/2007