LIN MAN CHI ANDY v. CHAN CHI MUN WINNIE

bjbj lzf) _Oe) s (Open to the public) Date of Hearing: 20 June 2007 Date of oral delivery of Decision and reasons: 20 June 2007 _____

REASONS FOR DECISION _____ This is an application by the Defendant to strike out the Plaintiff s claims in the action. Dealing first with the legal principles to be applied in deciding whether to strike out this action on the Defendant s application, the Defendant has referred me to the judgment in the case of Kammy Town Limited v Super Glory Corporation Limited. However, that case is not applicable to this application. The Defendant in Kammy Town Limited s case claims that the Plaintiff named in that action, a limited company, did not have proper corporate authority to start and to pursue the action. Here, the Plaintiff named is Andy Lin, an individual who sues under what he claims to be an agreement made between himself personally and the Defendant; whereas the Defendant claims that the agreement was made between herself and New York Life Insurance Worldwide Limited. On the evidence, the Defendant is not saying that Andy Lin s claim is unauthorised but that he is acting for New York Life Insurance Worldwide Limited ( New York Life ) and he is not authorised by New York Life to sue. However, the Plaintiff, Andy Lin, says that New York Life is not the claimant. So whether New York Life has authority to bring this action is not relevant. On the facts, therefore, Kammy Town Limited is clearly distinguishable and is not applicable. The principles to apply

therefore remain that where the court is asked to exercise its inherent jurisdiction to dismiss or to strike out an action, it should only exercise such discretion in exceptional cases where it is perfectly clear that the plea cannot succeed. There should only be a striking-out in plain and obvious cases. There should not be a trial upon affidavit. It is for the applicant seeking to strike out to demonstrate that the case is a plain and obvious one in which the Plaintiff s claim is bound to fail. The claim must be obviously unsustainable. It must be impossible for the claim to succeed before the court would strike it out. Disputed facts are to be taken in favour of the party sought to be struck out, i.e. the Plaintiff in this case. Where the legal viability of a cause of action is sensitive to the facts, an order to strike out should not be made. The jurisdiction should not be exercised if it requires a minute and protracted examination of the documents and the facts of the case to see if the Plaintiff has a cause of action. As the Defendant in this case concedes, whether a contract was made by Andy Lin personally or as an agent on behalf of a principal, depends on the intention of the parties and the surrounding circumstances. If, as the Plaintiff alleges, the agreement to make payment of the sum of $200,000 was made by the Plaintiff personally because New York Life would not

employ the Defendant in July and the Defendant could no longer work for Sun Life and she needed money, then there was a personal agreement made between the Plaintiff and the Defendant. Whether the Defendant can disprove such a personal agreement and whether the Defendant can successfully defend on the basis of there being an agreement made between the Defendant and the Plaintiff acting only as agent of New York Life depends on the court s determination of the facts in dispute and the evidence to be adduced. The court does not have all the facts before it at this stage and the facts are still uncertain. I am therefore not satisfied on the evidence that this is a case for the court to exercise its discretion to dismiss and to strike out the Plaintiff s claim. The facts are clearly in dispute and neither the Plaintiff s nor the Defendant s version of events is wholly consistent in light of the factual circumstances laid out. Taking the disputed facts in favour of the Plaintiff whose claim the Defendant seeks to strike out, it is not plain or obvious that his case is obviously unsustainable. I therefore refuse the Defendant s application and costs should be in favour of the Plaintiff. (Discussion re certificate for counsel) Costs to the Plaintiff with certificate for counsel. (Mimmie Chan) District Judge Ms Angela Gwilt, instructed by Wong, Fung & Co., for the Plaintiff Mr Y S Lau, of Messrs Y S Lau & Partners, for the Defendant

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