KAM HUNG WAN WINNIE v. TIN SHUI WAI DEVELOPMENT LTD AND ANOTHER

KAM HUNG WAN WINNIE v. TIN SHUI WAI DEVELOPMENT LTD AND ANOTHER

The court refused the solicitors' applications for a separate preliminary trial and refused stays because splitting the trial was not just and convenient: it would cause delay, increased costs, risk prejudice to fair trial (faded memories, lost witnesses), duplicative appeals and stress to parties. The court allowed the developer's strike-out application against the purchasers (pleadings disclosed no reasonable cause of action) and directed a further directions hearing and costs to be dealt with at that hearing.

Citation
KAM HUNG WAN WINNIE v. TIN SHUI WAI DEVELOPMENT LTD AND ANOTHER
Parties
Vendor/developer; Plaintiff and 1st Defendant in Various Actions: Tin Shui Wai Development Limited; Solicitors; 2nd Defendant/third Party in Various Actions: Baker & McKenzie; Solicitors; 2nd Defendant/third Party in Various Actions: Stikeman Elliott; Purchaser/plaintiff (hca 4610): Lau Chung Fai; Purchaser/plaintiff (hca 4610): Lam Man Yee; Purchaser/plaintiff (hca 1887): Cheng Chi Lung
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 July 2006
Case Number
HCA4655/2003
Procedural Posture
Civil Contract and Professional Negligence / Pre Trial Interlocutory Applications (preliminary Issue, Stay, Strike Out); Directions Hearing Pending
Outcome
Applications for trial of preliminary issue in HCA 4610 and HCA 4737 refused; applications for stay in the other listed actions dismissed; developer's (TSW) strike-out application allowed (subject to appeal); directions hearing adjourned and costs reserved to that hearing.
Legal Topics
Preliminary Issue, Stay of Proceedings, Strike Out, Rescission, Completion of Development, Solicitor Duty of Care, Case Management
Source Language
EN
Contract Tort Professional Negligence Civil Procedure Preliminary Issue Stay of Proceedings Strike Out Rescission +3 more

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Parties

Tin Shui Wai Development Limited

Vendor/developer; Plaintiff and 1st Defendant in Various Actions

Baker & McKenzie

Solicitors; 2nd Defendant/third Party in Various Actions

Stikeman Elliott

Solicitors; 2nd Defendant/third Party in Various Actions

Lau Chung Fai

Purchaser/plaintiff (hca 4610)

Lam Man Yee

Purchaser/plaintiff (hca 4610)

Cheng Chi Lung

Purchaser/plaintiff (hca 1887)

Procedural Posture

Civil Contract and Professional Negligence / Pre Trial Interlocutory Applications (preliminary Issue, Stay, Strike Out); Directions Hearing Pending

Legal Issues

  1. 1 Whether the Development was complete as at 31 December 1997 for the purposes of clause 4(1)(c) of the Sale and Purchase Agreement
  2. 2 Whether a right of rescission under clause 4(4)(a) accrued to purchasers on 1 January 1998
  3. 3 Whether the solicitors owed and breached duties of care to advise and protect the purchasers' right of rescission

Ratio Decidendi

The court refused the solicitors' applications for a separate preliminary trial and refused stays because splitting the trial was not just and convenient: it would cause delay, increased costs, risk prejudice to fair trial (faded memories, lost witnesses), duplicative appeals and stress to parties. The court allowed the developer's strike-out application against the purchasers (pleadings disclosed no reasonable cause of action) and directed a further directions hearing and costs to be dealt with at that hearing.

Court Disposition

Applications for trial of preliminary issue in HCA 4610 and HCA 4737 refused; applications for stay in the other listed actions dismissed; developer's (TSW) strike-out application allowed (subject to appeal); directions hearing adjourned and costs reserved to that hearing.

Orders

  • Application for trial of the preliminary issue in HCA 4610 and HCA 4737 refused
  • Applications for stay of the other listed proceedings dismissed