YUN KEE KITCHEN LTD v. LUK KWAN AND ANOTHER

YUN KEE KITCHEN LTD v. LUK KWAN AND ANOTHER

The court disallowed the proposed amendments relating to clauses 7(c) and 7(e) because they introduced new, distinct defences at a late stage which would cause serious prejudice and complication (likely joinder of the solicitors, rectification and further discovery, delay and potential inconsistent findings); on a balancing exercise fairness required refusal. The amendment relating to clause 5(n) and cosmetic amendments were allowed. Costs of the amendment application were ordered to the Plaintiff but indemnity costs were refused.

Citation
YUN KEE KITCHEN LTD v. LUK KWAN AND ANOTHER
Parties
Plaintiff: Plaintiff; Defendant: Luk Kwan; Defendant: Luk Pak Ling
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
7 August 2008
Case Number
DCCJ90/2007
Procedural Posture
Landlord and Tenant Dispute; Contract and Tort Claims / Trial — Application to Amend Pleadings on First Day of Trial
Outcome
Part of application to amend allowed (cosmetic amendments and clause 5(n)); amendments relating to clauses 7(c) and 7(e) disallowed; costs to Plaintiff but not on indemnity basis; short adjournment granted to enable Defendants to seek independent advice; trial to resume.
Legal Topics
Amendment of Pleadings, Exemption Clauses, Rectification, Costs, Late Application to Amend
Source Language
EN
Contract Landlord and Tenant Civil Procedure Professional Negligence Amendment of Pleadings Exemption Clauses Rectification Costs +1 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 9 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Plaintiff

Plaintiff

Luk Kwan

Defendant

Luk Pak Ling

Defendant

Procedural Posture

Landlord and Tenant Dispute; Contract and Tort Claims / Trial — Application to Amend Pleadings on First Day of Trial

Legal Issues

  1. 1 Whether leave should be granted for late amendment of Defence and Counterclaim to rely on clauses 7(c) and 7(e) of the Tenancy Agreement
  2. 2 Whether clauses 7(c) and 7(e) operate to defeat the Plaintiff's claim
  3. 3 Whether the Plaintiff would suffer unfair prejudice requiring refusal of amendment

Ratio Decidendi

The court disallowed the proposed amendments relating to clauses 7(c) and 7(e) because they introduced new, distinct defences at a late stage which would cause serious prejudice and complication (likely joinder of the solicitors, rectification and further discovery, delay and potential inconsistent findings); on a balancing exercise fairness required refusal. The amendment relating to clause 5(n) and cosmetic amendments were allowed. Costs of the amendment application were ordered to the Plaintiff but indemnity costs were refused.

Court Disposition

Part of application to amend allowed (cosmetic amendments and clause 5(n)); amendments relating to clauses 7(c) and 7(e) disallowed; costs to Plaintiff but not on indemnity basis; short adjournment granted to enable Defendants to seek independent advice; trial to resume.

Orders

  • Amendment to Defence and Counterclaim allowed insofar as it relates to clause 5(n) and cosmetic amendments
  • Amendments seeking to rely on clauses 7(c) and 7(e) of the Tenancy Agreement disallowed