YAU CHUNG FAT JEFREY v. TIN SHUI WAI DEVELOPMENT LTD AND ANOTHER

YAU CHUNG FAT JEFREY v. TIN SHUI WAI DEVELOPMENT LTD AND ANOTHER

The court refused the solicitor defendants' applications for trial of the preliminary issue in HCA 4610 and HCA 4737 and dismissed the applications to stay the other related proceedings because splitting the trial would not be just and convenient: the time estimates, need for common evidence and discovery, risk of escalated costs, delay, appeals and prejudice to fair trial outweighed any convenience. The court also allowed TSW's strike-out application against the plaintiffs' claims on the basis they disclosed no reasonable cause of action (subject to appeal). Directions and costs issues were adjourned to a directions hearing.

Citation
YAU CHUNG FAT JEFREY v. TIN SHUI WAI DEVELOPMENT LTD AND ANOTHER
Parties
Plaintiff / 1st Defendant (various Actions): Tin Shui Wai Development Limited; 2nd Defendant / Third Party (solicitors): Baker & McKenzie; 2nd Defendant (solicitors): Stikeman, Elliott (and LAM, SEE MAN FRANCOISE formerly trading as Stikeman Elliott); Plaintiffs / Purchasers (various Actions): Multiple individual purchasers (representative plaintiffs); Defendant (in HCA 1482/2003): Fu Ka Tsang; Plaintiff (hca 1887/2003): Cheng Chi Lung; Plaintiffs (various Actions): Other named individual plaintiffs (representative: Lau Chung Fai; Lam Man Yee; Kan Moon Tong Danny; Lau Wing Fong)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 July 2006
Case Number
HCA4614/2003
Procedural Posture
Civil Contract and Professional Negligence (property Sale/purchase) / Interlocutory Ruling on Applications for Trial of Preliminary Issue, Stays and Directions; Strike Out Application Decided
Outcome
Applications for trial of preliminary issue (HCA 4610 and HCA 4737) refused; applications for stay of 27 related proceedings dismissed; TSW's strike-out application allowed; directions hearing adjourned; costs to be determined at directions hearing.
Legal Topics
Preliminary Issue, Stay of Proceedings, Strike Out, Completion of Contract, Rescission, Solicitor Duty of Care, Consent Scheme
Source Language
EN
Contract Law Professional Negligence Civil Procedure Property Law Preliminary Issue Stay of Proceedings Strike Out Completion of Contract +3 more

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Parties

Tin Shui Wai Development Limited

Plaintiff / 1st Defendant (various Actions)

Baker & McKenzie

2nd Defendant / Third Party (solicitors)

Stikeman, Elliott (and LAM, SEE MAN FRANCOISE formerly trading as Stikeman Elliott)

2nd Defendant (solicitors)

Multiple individual purchasers (representative plaintiffs)

Plaintiffs / Purchasers (various Actions)

Fu Ka Tsang

Defendant (in HCA 1482/2003)

Cheng Chi Lung

Plaintiff (hca 1887/2003)

Other named individual plaintiffs (representative: Lau Chung Fai; Lam Man Yee; Kan Moon Tong Danny; Lau Wing Fong)

Plaintiffs (various Actions)

Procedural Posture

Civil Contract and Professional Negligence (property Sale/purchase) / Interlocutory Ruling on Applications for Trial of Preliminary Issue, Stays and Directions; Strike Out Application Decided

Legal Issues

  1. 1 Whether the Development was complete as at 31 December 1997 pursuant to clause 4(1)(c) of the standard 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 (Baker & McKenzie / Stikeman Elliott) owed and breached a duty to advise purchasers and thus are liable in negligence

Ratio Decidendi

The court refused the solicitor defendants' applications for trial of the preliminary issue in HCA 4610 and HCA 4737 and dismissed the applications to stay the other related proceedings because splitting the trial would not be just and convenient: the time estimates, need for common evidence and discovery, risk of escalated costs, delay, appeals and prejudice to fair trial outweighed any convenience. The court also allowed TSW's strike-out application against the plaintiffs' claims on the basis they disclosed no reasonable cause of action (subject to appeal). Directions and costs issues were adjourned to a directions hearing.

Court Disposition

Applications for trial of preliminary issue (HCA 4610 and HCA 4737) refused; applications for stay of 27 related proceedings dismissed; TSW's strike-out application allowed; directions hearing adjourned; costs to be determined at directions hearing.

Orders

  • Application for trial of preliminary issue in HCA 4610 and HCA 4737 refused
  • Applications for stay in the related actions dismissed