LAM FUNG CHING ANNIE v. TSE KWOK WING JACKY AND ANOTHER

LAM FUNG CHING ANNIE v. TSE KWOK WING JACKY AND ANOTHER

The affirmation filed on 11 January 2013 was not the defendants' counterclaim; it was admissible as documentary support to the 1st defendant's earlier affirmation and could be treated as an amendment to the defence or as premature voluntary discovery, therefore it could not be struck out under Order 18 r.19. The defendants were granted an extension to file their counterclaim as a pleading within 30 days (plaintiff to file defence within 28 days). Declaratory relief concerning the Father's alleged beneficial ownership requires appropriate pleading/joinder strategy; the proposed declaratory counterclaim as framed was objectionable unless formulated and pleaded properly with consideration of...

Citation
LAM FUNG CHING ANNIE v. TSE KWOK WING JACKY AND ANOTHER
Parties
Plaintiff: Plaintiff; Defendant: 1st Defendant; Defendant: 2nd Defendant; Non‑party/alleged Beneficial Owner (father): Tse Tin Sing
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
17 April 2013
Case Number
DCMP1129/2012
Procedural Posture
Partition Proceeding Under Section 6 Partition Ordinance Converted From Originating Summons to Action / Interlocutory Applications (striking‑out Summons and Application for Extension of Time to File Counterclaim)
Outcome
Striking‑out summons dismissed; defendants granted extension to file counterclaim as a pleading within 30 days; plaintiff to file defence to counterclaim within 28 days; costs orders made
Legal Topics
Partition, Counterclaim, Striking Out, Pleadings Amendment, Discovery, Declaratory Relief, Joinder, Costs, Extension of Time
Source Language
EN
Property Law Civil Procedure Equity Partition Counterclaim Striking Out Pleadings Amendment Discovery +4 more

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Parties

Plaintiff

Plaintiff

1st Defendant

Defendant

2nd Defendant

Defendant

Tse Tin Sing

Non‑party/alleged Beneficial Owner (father)

Procedural Posture

Partition Proceeding Under Section 6 Partition Ordinance Converted From Originating Summons to Action / Interlocutory Applications (striking‑out Summons and Application for Extension of Time to File Counterclaim)

Legal Issues

  1. 1 Whether the 3rd affirmation filed on 11 January 2013 constituted the defendants' counterclaim mandated by the court order and was therefore liable to be struck out
  2. 2 Whether the defendants should be granted an extension of time to file a counterclaim and the form in which it must be filed
  3. 3 Whether declaratory relief as pleaded could be granted without joining the alleged beneficial owner (the Father) as a party

Ratio Decidendi

The affirmation filed on 11 January 2013 was not the defendants' counterclaim; it was admissible as documentary support to the 1st defendant's earlier affirmation and could be treated as an amendment to the defence or as premature voluntary discovery, therefore it could not be struck out under Order 18 r.19. The defendants were granted an extension to file their counterclaim as a pleading within 30 days (plaintiff to file defence within 28 days). Declaratory relief concerning the Father's alleged beneficial ownership requires appropriate pleading/joinder strategy; the proposed declaratory counterclaim as framed was objectionable unless formulated and pleaded properly with consideration of...

Court Disposition

Striking‑out summons dismissed; defendants granted extension to file counterclaim as a pleading within 30 days; plaintiff to file defence to counterclaim within 28 days; costs orders made

Orders

  • Striking‑out summons dismissed
  • Defendants granted leave to file their counterclaim by way of pleading within 30 days from date of judgment