LEUNG PIK WA v. POH PO LIAN AND ANOTHER

LEUNG PIK WA v. POH PO LIAN AND ANOTHER

The master was correct: there was no clear and obvious breach warranting the automatic dismissal sanction because the plaintiff had substantially complied, omissions were likely inadvertent, the plaintiff promptly attempted to remedy the omission and the bank was uncooperative; accordingly the appeal is dismissed and costs awarded to the plaintiff on the judge's discretionary assessment.

Citation
LEUNG PIK WA v. POH PO LIAN AND ANOTHER
Parties
Plaintiff: Plaintiff; Defendants: 1st and 2nd defendants
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 December 2013
Case Number
HCA681/2011
Procedural Posture
Civil Appeal (discovery; Costs) / Appeal From Master's Order
Outcome
Appeal dismissed
Legal Topics
Unless Order, Specific Discovery, Relief From Sanction, Costs on Compliance and Non Compliance
Source Language
EN
Civil Procedure Discovery Costs Court Practice and Procedure Unless Order Specific Discovery Relief From Sanction Costs on Compliance and Non Compliance

Case Brief

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Parties

Plaintiff

Plaintiff

1st and 2nd defendants

Defendants

Procedural Posture

Civil Appeal (discovery; Costs) / Appeal From Master's Order

Legal Issues

  1. 1 Whether the plaintiff breached the unless order such that the dismissal sanction should automatically follow
  2. 2 Whether the plaintiff made genuine efforts to comply with the unless order (including enquiries of the bank)
  3. 3 Which party should bear costs of the summonses and the appeal

Ratio Decidendi

The master was correct: there was no clear and obvious breach warranting the automatic dismissal sanction because the plaintiff had substantially complied, omissions were likely inadvertent, the plaintiff promptly attempted to remedy the omission and the bank was uncooperative; accordingly the appeal is dismissed and costs awarded to the plaintiff on the judge's discretionary assessment.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Order nisi of costs in favour of the plaintiff with certificate for counsel, to be taxed if not agreed