WONG WAI LUNG AND ANOTHER v. BONDFIELD DEVELOPMENT LTD AND ANOTHER

WONG WAI LUNG AND ANOTHER v. BONDFIELD DEVELOPMENT LTD AND ANOTHER

Summary judgment and strike out were properly dismissed because triable issues existed (notably privity/authority and interpretation of contractual clauses including clause 8), the 2nd defendant was not on the face of the contract a party and could not be summarily liable, time was not of the essence absent notice, and the judge properly exercised his discretion to allow amendment to delete a misdrafted illegality plea; costs were adjusted to reflect the late amendment application.

Citation
WONG WAI LUNG AND ANOTHER v. BONDFIELD DEVELOPMENT LTD AND ANOTHER
Parties
Plaintiffs/appellants: WONG WAI LUNG & HO LAI HEUNG; 1st Defendant/respondent: BONDFIELD DEVELOPMENT LIMITED; 2nd Defendant/respondent: LEE SZE HING
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
31 August 2006
Case Number
CACV214/2006
Procedural Posture
Civil Appeal (court of Appeal) From DCCJ No. 5617 of 2005 / Judgment on Appeal (hearing 15 Aug 2006; Judgment 31 Aug 2006)
Outcome
Appeal dismissed; order below varied as to costs of the amendment application
Legal Topics
Summary Judgment (order 14), Strike Out, Amendment of Defence, Specific Performance, Illegality, Warranty of Authority, Costs
Source Language
EN
Contract Law Civil Procedure Property Law Summary Judgment (order 14) Strike Out Amendment of Defence Specific Performance Illegality +2 more

Case Brief

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Parties

WONG WAI LUNG & HO LAI HEUNG

Plaintiffs/appellants

BONDFIELD DEVELOPMENT LIMITED

1st Defendant/respondent

LEE SZE HING

2nd Defendant/respondent

Procedural Posture

Civil Appeal (court of Appeal) From DCCJ No. 5617 of 2005 / Judgment on Appeal (hearing 15 Aug 2006; Judgment 31 Aug 2006)

Legal Issues

  1. 1 Whether summary judgment was appropriate on a claim of total failure of consideration
  2. 2 Whether the 2nd defendant was a party to the contract and liable
  3. 3 Whether time was of the essence and whether notice to perform was required before claiming total failure of consideration

Ratio Decidendi

Summary judgment and strike out were properly dismissed because triable issues existed (notably privity/authority and interpretation of contractual clauses including clause 8), the 2nd defendant was not on the face of the contract a party and could not be summarily liable, time was not of the essence absent notice, and the judge properly exercised his discretion to allow amendment to delete a misdrafted illegality plea; costs were adjusted to reflect the late amendment application.

Court Disposition

Appeal dismissed; order below varied as to costs of the amendment application

Orders

  • Appeal dismissed save that the order below is varied: costs of the application to amend are to be to the plaintiffs, to be taxed if not agreed
  • There be an order nisi that the costs of this appeal be to the defendants, to be taxed if not agreed