LI MING CHEONG v. LI WAI KI AND OTHERS

LI MING CHEONG v. LI WAI KI AND OTHERS

Order 20 rule 1 permits amendment of a writ to add a new defendant without prior separate leave under Order 15 rule 6 provided the writ had not been served when amended; there is no two-stage requirement for prior leave under Order 15 rule 6 before amendment under Order 20 rule 1. The court must, when called upon under Order 20 rule 4(2), consider whether leave would have been refused; here leave would have been granted and the amendment was valid, so the Master's disallowance was wrong and the appeal succeeds.

Citation
LI MING CHEONG v. LI WAI KI AND OTHERS
Parties
Plaintiff: LI MING CHEONG; 1st Defendant: LI WAI KI; 2nd Defendant: CHAU LAI PING; 3rd Defendant: DANNY K.H. YU & CO. (a firm)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
1 March 2002
Case Number
HCA10334/2000
Procedural Posture
Civil Family Property Dispute With Claims in Undue Influence, Fraudulent Misrepresentation and Professional Negligence / Appeal From Master's Interlocutory Order Disallowing Amendment/joinder (order 20 Rule 4 Appeal)
Outcome
Appeal allowed; Master de Souza's order of 7 January 2002 disallowing the amendment to join the 3rd defendant set aside; 3rd defendant's summons dismissed.
Legal Topics
Amendment of Writ, Joinder of Parties, Order 20 Rule 1, Order 20 Rule 4(2), Order 15 Rules 6 8, Undue Influence, Fraudulent Misrepresentation, Fiduciary Duty
Source Language
EN
Civil Procedure Equity Trusts Tort Professional Negligence Amendment of Writ Joinder of Parties Order 20 Rule 1 +5 more

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Parties

LI MING CHEONG

Plaintiff

LI WAI KI

1st Defendant

CHAU LAI PING

2nd Defendant

DANNY K.H. YU & CO. (a firm)

3rd Defendant

Procedural Posture

Civil Family Property Dispute With Claims in Undue Influence, Fraudulent Misrepresentation and Professional Negligence / Appeal From Master's Interlocutory Order Disallowing Amendment/joinder (order 20 Rule 4 Appeal)

Legal Issues

  1. 1 Whether a plaintiff may, without leave, amend a writ under Order 20 rule 1 to add a new defendant where the writ had not been served
  2. 2 Whether joinder of a new defendant requires prior separate leave under Order 15 rule 6 before amendment under Order 20 rule 1
  3. 3 Whether under Order 20 rule 4(2) the amendment must be disallowed because an application for leave would have been refused on the date of amendment

Ratio Decidendi

Order 20 rule 1 permits amendment of a writ to add a new defendant without prior separate leave under Order 15 rule 6 provided the writ had not been served when amended; there is no two-stage requirement for prior leave under Order 15 rule 6 before amendment under Order 20 rule 1. The court must, when called upon under Order 20 rule 4(2), consider whether leave would have been refused; here leave would have been granted and the amendment was valid, so the Master's disallowance was wrong and the appeal succeeds.

Court Disposition

Appeal allowed; Master de Souza's order of 7 January 2002 disallowing the amendment to join the 3rd defendant set aside; 3rd defendant's summons dismissed.

Orders

  • Dismissal of the 3rd defendant's summons dated 20 September 2001
  • Unless either party applies to be heard on costs within 14 days, the costs of the 3rd defendant's summons, including costs before Master de Souza and the costs of the appeal, to be paid by the plaintiff