LO KA CHUN v. LO TO AND ANOTHER

LO KA CHUN v. LO TO AND ANOTHER

Leave to amend was granted because the proposed particulars were not immaterial or useless in law and at least one particular (the written undertaking) was arguably sufficient to found a plea that the 2nd defendant was 'well aware' of a trust; the amendment was sought before evidence and with prior notice so no...

Source-derived case information.

Citation
LO KA CHUN v. LO TO AND ANOTHER
Parties
Plaintiff: Lo Ka Chun (also known as Brian Lo); 1st Defendant: Lo To; 2nd Defendant: Lo Tsoi
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
22 September 1989
Case Number
HCA2015/1980
Procedural Posture
Civil Application to Amend Statement of Claim (constructive Trust) / During Trial: After Plaintiff's Opening, Before Oral Evidence
Outcome
Leave to amend the Statement of Claim granted subject to removing 'or alternatively' and subject to usual costs terms
Legal Topics
Constructive Trust, Knowing Receipt, Amendment of Pleadings, Particulars of Knowledge, Costs
Source Language
en
Equity Trusts Civil Procedure Constructive Trust Knowing Receipt Amendment of Pleadings Particulars of Knowledge Costs

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Summary, issues, holding and outcome

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Parties

Lo Ka Chun (also known as Brian Lo)

Plaintiff

Lo To

1st Defendant

Lo Tsoi

2nd Defendant

Procedural Posture

Civil Application to Amend Statement of Claim (constructive Trust) / During Trial: After Plaintiff's Opening, Before Oral Evidence

Legal Issues

  1. 1 Whether leave should be granted to amend the Statement of Claim at this stage
  2. 2 Whether the proposed particulars amount to knowledge sufficient to found constructive trusteeship/knowing receipt
  3. 3 Whether the phrase 'further or alternatively' impermissibly introduces a distinct new case

Ratio Decidendi

Leave to amend was granted because the proposed particulars were not immaterial or useless in law and at least one particular (the written undertaking) was arguably sufficient to found a plea that the 2nd defendant was 'well aware' of a trust; the amendment was sought before evidence and with prior notice so no undue prejudice arose, subject to removal of wording implying an alternative distinct case and subject to the usual costs order that the plaintiff pay costs occasioned by the amendment.

Court Disposition

Leave to amend the Statement of Claim granted subject to removing 'or alternatively' and subject to usual costs terms

Orders

  • Leave granted to amend the Statement of Claim to plead particulars of the 2nd defendant's knowledge (excluding the phrase 'or alternatively')
  • The costs of and occasioned by the amendment to be paid by the plaintiff to the defendants (usual order)