TIN SHUI WAI DEVELOPMENT LTD v. HUNG SZE FAI

TIN SHUI WAI DEVELOPMENT LTD v. HUNG SZE FAI

The court refused the applications to try the completion/rescission issue as a preliminary issue in HCA 4610 and 4737 and refused to stay the remaining related actions because a split trial would not be just or convenient: it would not save time, would increase costs and delay, risk loss of evidence and prejudice...

Source-derived case information.

Citation
TIN SHUI WAI DEVELOPMENT LTD v. HUNG SZE FAI
Parties
Developer / Plaintiff in Some Actions, 1st Defendant in Others: Tin Shui Wai Development Limited; Solicitors / 2nd Defendant / Third Party Defendant in Many Actions: Baker & McKenzie; Solicitors / 2nd Defendant in Some Actions: Stikeman Elliott (and named former principals); Plaintiffs / Claimants: Various individual purchasers (multiple plaintiffs); Plaintiff (hca 1887/2003): Cheng Chi Lung
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 July 2006
Case Number
HCA1049/2004
Procedural Posture
Civil Contract and Professional Negligence (multiple Related Actions) / Pre Trial Applications: Applications for Determination of Preliminary Issue and for Stays; Directions Hearing Adjourned; Earlier Strike Out Ruling Delivered
Outcome
Applications for trial of the preliminary issue in HCA 4610 and HCA 4737 refused; applications for stay of the other proceedings dismissed; directions hearing adjourned; costs to be dealt with at directions hearing; earlier strike-out of plaintiffs' claims against Tin Shui Wai Development Limited upheld (subject to...
Legal Topics
Rescission, Completion of Development, Consent to Assign, Preliminary Issue, Stay of Proceedings, Strike Out, Discovery, Duty of Care
Source Language
en
Contract Law Professional Negligence (solicitors) Civil Procedure Rescission Completion of Development Consent to Assign Preliminary Issue Stay of Proceedings +3 more

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Parties

Tin Shui Wai Development Limited

Developer / Plaintiff in Some Actions, 1st Defendant in Others

Baker & McKenzie

Solicitors / 2nd Defendant / Third Party Defendant in Many Actions

Stikeman Elliott (and named former principals)

Solicitors / 2nd Defendant in Some Actions

Various individual purchasers (multiple plaintiffs)

Plaintiffs / Claimants

Cheng Chi Lung

Plaintiff (hca 1887/2003)

Procedural Posture

Civil Contract and Professional Negligence (multiple Related Actions) / Pre Trial Applications: Applications for Determination of Preliminary Issue and for Stays; Directions Hearing Adjourned; Earlier Strike Out Ruling Delivered

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 on 1 January 1998
  3. 3 Whether the trial of that issue should be ordered as a preliminary issue separated from the negligence issues

Ratio Decidendi

The court refused the applications to try the completion/rescission issue as a preliminary issue in HCA 4610 and 4737 and refused to stay the remaining related actions because a split trial would not be just or convenient: it would not save time, would increase costs and delay, risk loss of evidence and prejudice fair trial; accordingly all issues should proceed together and the applications for stay are dismissed; directions hearing adjourned and costs to be determined there; earlier strike-out of plaintiffs' claims against TSW was upheld in the separate strike-out ruling.

Court Disposition

Applications for trial of the preliminary issue in HCA 4610 and HCA 4737 refused; applications for stay of the other proceedings dismissed; directions hearing adjourned; costs to be dealt with at directions hearing; earlier strike-out of plaintiffs' claims against Tin Shui Wai Development Limited upheld (subject to...

Orders

  • Refuse application to try preliminary issue in HCA 4610 and HCA 4737
  • Dismiss applications for stay in the related proceedings