YUN KEE KITCHEN LTD v. LUK KWAN AND ANOTHER

YUN KEE KITCHEN LTD v. LUK KWAN AND ANOTHER

The court disallowed the proposed amendments insofar as they relied on clauses 7(c) and 7(e) because they were new defences raised very late, the defendants offered no satisfactory explanation for delay, and allowing them would cause serious prejudice to the Plaintiff (likely joinder of the solicitor, rectification/discovery and substantial delay) making the exercise of discretion unjust; amendments limited to clause 5(n) and cosmetic changes were allowed; costs awarded to Plaintiff but not on an indemnity basis.

Citation
YUN KEE KITCHEN LTD v. LUK KWAN AND ANOTHER
Parties
Defendant: LUK KWAN; Defendant: LUK PAK LING
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
7 August 2008
Case Number
DCCJ4904/2006
Procedural Posture
Landlord and Tenant Dispute / Water Damage Claim / Application to Amend Defence and Counterclaim at Commencement of Trial (two‑day Trial)
Outcome
Amendments as to clauses 7(c) and 7(e) disallowed; amendment as to clause 5(n) and cosmetic amendments allowed; costs awarded to Plaintiff (certificate for counsel); indemnity costs refused; short adjournment granted to permit Defendants to seek independent advice.
Legal Topics
Amendment of Pleadings, Exemption Clause/contractual Liability, Landlord Repair Obligations, Rectification, Joinder of Parties, Costs
Source Language
EN
Contract Property Civil Procedure Tort Amendment of Pleadings Exemption Clause/contractual Liability Landlord Repair Obligations Rectification +2 more

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Parties

LUK KWAN

Defendant

LUK PAK LING

Defendant

Procedural Posture

Landlord and Tenant Dispute / Water Damage Claim / Application to Amend Defence and Counterclaim at Commencement of Trial (two‑day Trial)

Legal Issues

  1. 1 Whether leave should be granted to amend Defence and Counterclaim at the outset of trial
  2. 2 Whether contractual clauses 7(c) and 7(e) operate as a complete defence to the Plaintiff's claim for water damage and loss of revenue
  3. 3 Whether allowing the amendments would cause prejudice requiring joinder of the solicitors who drafted the Tenancy Agreement and additional discovery/rectification proceedings

Ratio Decidendi

The court disallowed the proposed amendments insofar as they relied on clauses 7(c) and 7(e) because they were new defences raised very late, the defendants offered no satisfactory explanation for delay, and allowing them would cause serious prejudice to the Plaintiff (likely joinder of the solicitor, rectification/discovery and substantial delay) making the exercise of discretion unjust; amendments limited to clause 5(n) and cosmetic changes were allowed; costs awarded to Plaintiff but not on an indemnity basis.

Court Disposition

Amendments as to clauses 7(c) and 7(e) disallowed; amendment as to clause 5(n) and cosmetic amendments allowed; costs awarded to Plaintiff (certificate for counsel); indemnity costs refused; short adjournment granted to permit Defendants to seek independent advice.

Orders

  • Amendments to Defence and Counterclaim relating to clauses 7(c) and 7(e) are disallowed
  • Amendment relating to clause 5(n) and cosmetic amendments allowed