TND GROUP LTD v. LAU CHIANG CHU, VIVIEN AND ANOTHER

TND GROUP LTD v. LAU CHIANG CHU, VIVIEN AND ANOTHER

Applying a permissive 'same interest' test the court found on the pleadings and available evidence that Lau and Leung, as President and Secretary General and signatory/operative figures in relation to the Agreement, were properly joined as representatives of ABF members; further, the pleaded facts disclosed arguable causes of action against Lau (warranty of authority/potential personal liability), against ABFT Ltd (audit confirmation and collateral warranty/assumption of liability) and the Assignment prima facie vested enforceable rights in TND Group; the claims were not plainly unsustainable and therefore the strike out summons failed.

Citation
TND GROUP LTD v. LAU CHIANG CHU, VIVIEN AND ANOTHER
Parties
Plaintiff (assignee of TND Marketing): TND Group Ltd; 1st Defendant (sued on Own Behalf and as Representative of Members of Asian Bowling Federation as at 26 February 2004): Mdm. Lau; 1st Defendant (sued on Own Behalf and as Representative of Members of Asian Bowling Federation as at 26 February 2004): Mdm. Leung; 2nd Defendant: ABFT Limited
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
14 October 2010
Case Number
DCCJ5395/2009
Procedural Posture
Civil Claim for Unpaid Management Fee / Debt, Contractual and Agency Issues, Representative Proceedings / Decision on Summons to Strike Out (order 18 Rule 19) and Determination of Representative Status Under Order 15 Rule 12
Outcome
Summons dismissed; declaration granted that Lau and Leung are proper representatives of all other members comprising the Asian Bowling Federation as at 26 February 2004; costs awarded to TND Group; Defendants ordered to file Defence within 21 days
Legal Topics
Strike Out Application, Order 18 Rule 19, Order 15 Rule 12 Joinder/representation, Collateral Contract and Warranty of Authority, Assignment of Debts, Liability of Agent/principal
Source Language
EN
Contract Agency Law Civil Procedure Representative Proceedings Assignment of Debt Strike Out Application Order 18 Rule 19 Order 15 Rule 12 Joinder/representation +3 more

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Parties

TND Group Ltd

Plaintiff (assignee of TND Marketing)

Mdm. Lau

1st Defendant (sued on Own Behalf and as Representative of Members of Asian Bowling Federation as at 26 February 2004)

Mdm. Leung

1st Defendant (sued on Own Behalf and as Representative of Members of Asian Bowling Federation as at 26 February 2004)

ABFT Limited

2nd Defendant

Procedural Posture

Civil Claim for Unpaid Management Fee / Debt, Contractual and Agency Issues, Representative Proceedings / Decision on Summons to Strike Out (order 18 Rule 19) and Determination of Representative Status Under Order 15 Rule 12

Legal Issues

  1. 1 Whether Lau and Leung were properly joined as representatives of ABF members as at 26 February 2004
  2. 2 Whether the claims against Lau, Leung and ABFT Ltd disclose any reasonable cause of action or are plainly unsustainable and should be struck out
  3. 3 Whether ABFT Ltd assumed personal liability or gave a collateral warranty to pay the Service Fee

Ratio Decidendi

Applying a permissive 'same interest' test the court found on the pleadings and available evidence that Lau and Leung, as President and Secretary General and signatory/operative figures in relation to the Agreement, were properly joined as representatives of ABF members; further, the pleaded facts disclosed arguable causes of action against Lau (warranty of authority/potential personal liability), against ABFT Ltd (audit confirmation and collateral warranty/assumption of liability) and the Assignment prima facie vested enforceable rights in TND Group; the claims were not plainly unsustainable and therefore the strike out summons failed.

Court Disposition

Summons dismissed; declaration granted that Lau and Leung are proper representatives of all other members comprising the Asian Bowling Federation as at 26 February 2004; costs awarded to TND Group; Defendants ordered to file Defence within 21 days

Orders

  • Summons to strike out dismissed
  • Declaration that Mdm. Lau and Mdm. Leung are proper representatives of all other members of the Asian Bowling Federation as at 26 February 2004