CHEONG SHING LTD v. YU KWAN

CHEONG SHING LTD v. YU KWAN

The re-amended counterclaim by D3 is struck out because it discloses no reasonable cause of action and is vexatious and an abuse of process: permitting it would relitigate issues already decided at multiple levels, offend res judicata/issue estoppel and lead to a vexatious multiplicity of suits; D3 has no claim against P2 arising from the CFA judgment and must, if at all, seek recovery from D1/D5.

Citation
CHEONG SHING LTD v. YU KWAN
Parties
Plaintiff: Plaintiffs; Plaintiff (p2): P2; Defendant: D1; 3rd Defendant / Defendant by Counterclaim: Mr Kong (D3); Defendant: D5; Third Party Referenced: Mr Yu (P3)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 March 2010
Case Number
HCA12021/1998
Procedural Posture
Civil Litigation — Remitted Counterclaim; Strike Out Application / Application to Strike Out Re Amended Counterclaim Remitted by Court of Final Appeal
Outcome
Re-amended counterclaim by the 3rd defendant (Mr Kong) struck out and dismissed.
Legal Topics
Strike Out, Counterclaim, Remittal From Appellate Court, Subrogation, Duress, Loan, Abuse of Process, Issue Estoppel
Source Language
EN
Civil Procedure Equity Unjust Enrichment Res Judicata Contract Tort (duress) Strike Out Counterclaim +6 more

Case Brief

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Parties

Plaintiffs

Plaintiff

P2

Plaintiff (p2)

D1

Defendant

Mr Kong (D3)

3rd Defendant / Defendant by Counterclaim

D5

Defendant

Mr Yu (P3)

Third Party Referenced

Procedural Posture

Civil Litigation — Remitted Counterclaim; Strike Out Application / Application to Strike Out Re Amended Counterclaim Remitted by Court of Final Appeal

Legal Issues

  1. 1 Whether the 3rd defendant's re-amended counterclaim discloses a reasonable cause of action
  2. 2 Whether the counterclaim is barred by res judicata/issue estoppel or is an abuse of process
  3. 3 Whether D3 has any enforceable claim against the plaintiffs (P2) or must seek recovery from D1/D5

Ratio Decidendi

The re-amended counterclaim by D3 is struck out because it discloses no reasonable cause of action and is vexatious and an abuse of process: permitting it would relitigate issues already decided at multiple levels, offend res judicata/issue estoppel and lead to a vexatious multiplicity of suits; D3 has no claim against P2 arising from the CFA judgment and must, if at all, seek recovery from D1/D5.

Court Disposition

Re-amended counterclaim by the 3rd defendant (Mr Kong) struck out and dismissed.

Orders

  • The 3rd defendant's re-amended counterclaim is struck out as disclosing no reasonable cause of action and as vexatious and an abuse of process.
  • Counterclaim dismissed with costs to the plaintiffs (including costs of this application) to be taxed if not agreed.