LOCK KWOK ON ANTHONY v. YU TAI PENG

LOCK KWOK ON ANTHONY v. YU TAI PENG

The application to dismiss the action was refused because the plaintiff's claim was not plainly and obviously unsustainable on the pleadings, and it was inappropriate to decide contested triable issues on a strike‑out application; the Order 14A application was dismissed because the construction point is triable and had already been considered and declined by the prior judge, so it could not be re‑litigated; accordingly D2's application was dismissed and costs were ordered nisi against D2.

Citation
LOCK KWOK ON ANTHONY v. YU TAI PENG
Parties
Plaintiff: Lock Kwok On Anthony; 1st Defendant: Yu Tai Peng; 2nd Defendant: Yu Shiu Tin Paul; 3rd Defendant: Yu Siu Lung Steve
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
31 March 1999
Case Number
HCA5377/1997
Procedural Posture
Civil Contract/guarantee Dispute / Interlocutory Application in Chambers (application to Dismiss and Order 14 a Determination)
Outcome
D2's application dismissed
Legal Topics
Summary Judgment, Strike Out/dismissal, Order 14 a Determination, Condition Precedent, Joint and Several Guarantee, Res Judicata, Costs
Source Language
EN
Contract Guarantee Civil Procedure Agency Document Construction Summary Judgment Strike Out/dismissal Order 14 a Determination +4 more

Case Brief

Summary, issues, holding and outcome

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Parties

Lock Kwok On Anthony

Plaintiff

Yu Tai Peng

1st Defendant

Yu Shiu Tin Paul

2nd Defendant

Yu Siu Lung Steve

3rd Defendant

Procedural Posture

Civil Contract/guarantee Dispute / Interlocutory Application in Chambers (application to Dismiss and Order 14 a Determination)

Legal Issues

  1. 1 Whether the pleadings disclose no reasonable cause of action against D2
  2. 2 Whether the guarantee is unenforceable against D2 because a named co‑guarantor (Dennis Yu) did not sign
  3. 3 Whether the plaintiff gave notice within the time required by clause 2.01 (construction of 'from' and 'after')

Ratio Decidendi

The application to dismiss the action was refused because the plaintiff's claim was not plainly and obviously unsustainable on the pleadings, and it was inappropriate to decide contested triable issues on a strike‑out application; the Order 14A application was dismissed because the construction point is triable and had already been considered and declined by the prior judge, so it could not be re‑litigated; accordingly D2's application was dismissed and costs were ordered nisi against D2.

Court Disposition

D2's application dismissed

Orders

  • D2's application dismissed
  • Costs order nisi that the costs of this application be paid by D2 to the Plaintiff to be taxed in any event if not agreed