JACK GORDON LESLIE SMITH AND ANOTHER v. TAM MICHAEL WING WAH AND ANOTHER

JACK GORDON LESLIE SMITH AND ANOTHER v. TAM MICHAEL WING WAH AND ANOTHER

Enlargement of time was granted despite an unsatisfactory explanation because there was no prejudice and the dominant consideration (prospect of injustice if refused) favoured allowing the appeal; the proposed amendment to add subsequent acts of nuisance was permitted because the additional incidents were particulars of an ongoing cause of action (nuisance and breach of the DMC) rather than a new, incurably bad cause of action; directions for DNA and other expert evidence and for proving quantified loss were appropriate and proportionate to allow the plaintiffs to prove their case.

Citation
JACK GORDON LESLIE SMITH AND ANOTHER v. TAM MICHAEL WING WAH AND ANOTHER
Parties
1st Plaintiff: JACK GORDON LESLIE SMITH; 2nd Plaintiff: HELEN WOODSIDE SMITH; 1st Defendant: TAM MICHAEL WING WAH; 2nd Defendant: TAM AU ANNIE WAN YEE
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 March 2007
Case Number
HCA2638/2004
Procedural Posture
Civil Nuisance and Breach of Deed of Mutual Covenant (dmc) / Rehearing on Appeal From Master's Decisions on Applications to Amend Pleadings and for Directions; Application to Enlarge Time for Service of Notice of Appeal
Outcome
Appeal allowed; application to amend statement of claim granted; application for directions granted; application to enlarge time for service of notice of appeal granted.
Legal Topics
Nuisance, Breach of Deed of Mutual Covenant, Amendment of Pleadings, Extension of Time, Expert Evidence, Injunctions, Damages
Source Language
EN
Property Law Tort Contract Civil Procedure Nuisance Breach of Deed of Mutual Covenant Amendment of Pleadings Extension of Time +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 7 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

JACK GORDON LESLIE SMITH

1st Plaintiff

HELEN WOODSIDE SMITH

2nd Plaintiff

TAM MICHAEL WING WAH

1st Defendant

TAM AU ANNIE WAN YEE

2nd Defendant

Procedural Posture

Civil Nuisance and Breach of Deed of Mutual Covenant (dmc) / Rehearing on Appeal From Master's Decisions on Applications to Amend Pleadings and for Directions; Application to Enlarge Time for Service of Notice of Appeal

Legal Issues

  1. 1 Whether to enlarge time for service of notice of appeal
  2. 2 Whether amendment to statement of claim to add post-writ acts of nuisance is permitted
  3. 3 Whether directions should be given to allow DNA and other expert evidence and expert reports on quantified loss

Ratio Decidendi

Enlargement of time was granted despite an unsatisfactory explanation because there was no prejudice and the dominant consideration (prospect of injustice if refused) favoured allowing the appeal; the proposed amendment to add subsequent acts of nuisance was permitted because the additional incidents were particulars of an ongoing cause of action (nuisance and breach of the DMC) rather than a new, incurably bad cause of action; directions for DNA and other expert evidence and for proving quantified loss were appropriate and proportionate to allow the plaintiffs to prove their case.

Court Disposition

Appeal allowed; application to amend statement of claim granted; application for directions granted; application to enlarge time for service of notice of appeal granted.

Orders

  • Enlargement of time to serve the notice of appeal granted
  • Leave granted to amend the statement of claim to incorporate clause 11A as per proposed amended statement of claim; consequential leave to amend the defence and reply (21 days each)