IP CHIU FAT AND ANOTHER v. WONG FUNG LING AND OTHERS

IP CHIU FAT AND ANOTHER v. WONG FUNG LING AND OTHERS

Having regard to the judgment in the related 2nd action which rejected the plaintiffs' case of sole ownership and established a competing proprietary entitlement, the proposed amendment would impermissibly raise a new cause of action (ouster) based on a subsequent event and a different legal basis; allowing it would be unfair and contrary to the parties' aim of resolving disputes in a single trial, therefore leave to amend is refused and the plaintiffs' claims are dismissed against D1 and D3.

Citation
IP CHIU FAT AND ANOTHER v. WONG FUNG LING AND OTHERS
Parties
1st Plaintiff: IP CHIU FAT; 2nd Plaintiff: YIP PAK PUI; 1st Defendant: WONG FUNG LING; 2nd Defendant: Person(s) using or occupying The Portion of Section A of Shek O Inland Lot No 3 commonly known as 1st Floor and 2nd Floor, Rear Block, No 316 Shek O Village, Hong Kong without the consent of the 1st and 2nd Plaintiffs; 3rd Defendant: The Personal Representative of YIP CHIU FU, deceased
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 October 2016
Case Number
HCA1107/2012
Procedural Posture
Civil Property/possession Dispute / Application to Set Aside Default Judgment and to Dismiss Claims (chambers)
Outcome
Plaintiffs' application for leave to amend refused; claims in HCA 1107/2012 dismissed against 1st and 3rd defendants; order nisi for costs in favour of 1st and 3rd defendants.
Legal Topics
Possession, Default Judgment, Amendment of Claim, Ouster, Resulting Trust, Unauthorised Building Works, Finality of Litigation
Source Language
EN
Property Civil Procedure Trusts Land Law Costs Possession Default Judgment Amendment of Claim +4 more

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Parties

IP CHIU FAT

1st Plaintiff

YIP PAK PUI

2nd Plaintiff

WONG FUNG LING

1st Defendant

Person(s) using or occupying The Portion of Section A of Shek O Inland Lot No 3 commonly known as 1st Floor and 2nd Floor, Rear Block, No 316 Shek O Village, Hong Kong without the consent of the 1st and 2nd Plaintiffs

2nd Defendant

The Personal Representative of YIP CHIU FU, deceased

3rd Defendant

Procedural Posture

Civil Property/possession Dispute / Application to Set Aside Default Judgment and to Dismiss Claims (chambers)

Legal Issues

  1. 1 Whether plaintiffs should be permitted to amend statement of claim after adverse judgment in related action to pursue a new cause of action based on ouster
  2. 2 Whether the default judgment should be set aside and the 1st action dismissed following the judgment in the 2nd action
  3. 3 Whether the unauthorised works issue survived the 2nd action and can be pursued against D1 personally

Ratio Decidendi

Having regard to the judgment in the related 2nd action which rejected the plaintiffs' case of sole ownership and established a competing proprietary entitlement, the proposed amendment would impermissibly raise a new cause of action (ouster) based on a subsequent event and a different legal basis; allowing it would be unfair and contrary to the parties' aim of resolving disputes in a single trial, therefore leave to amend is refused and the plaintiffs' claims are dismissed against D1 and D3.

Court Disposition

Plaintiffs' application for leave to amend refused; claims in HCA 1107/2012 dismissed against 1st and 3rd defendants; order nisi for costs in favour of 1st and 3rd defendants.

Orders

  • Leave to amend refused
  • Claims in HCA 1107/2012 dismissed as against the 1st and 3rd defendants