SURSON DEVELOPMENT LTD v. SHUI HING (NG LUN) CONSTRUCTION LTD AND ANOTHER

SURSON DEVELOPMENT LTD v. SHUI HING (NG LUN) CONSTRUCTION LTD AND ANOTHER

Because the plaintiff sued and obtained judgment against the 1st Defendant, who on the plaintiff's own pleading was the alleged agent of the 2nd Defendant, the plaintiff elected to pursue the agent; that judgment therefore operates as a bar to proceedings against the alleged principal (the 2nd Defendant) while it subsists. The claim against the 2nd Defendant is also scandalous, vexatious and an abuse of process and must be struck out.

Citation
SURSON DEVELOPMENT LTD v. SHUI HING (NG LUN) CONSTRUCTION LTD AND ANOTHER
Parties
Plaintiff: Surson Development Limited; 1st Defendant: Shui Hing (Ng Lun) Construction Limited; 2nd Defendant: Shui On Building Contractors Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 November 2004
Case Number
HCCT72/2000
Procedural Posture
Construction and Arbitration Proceedings / Strike Out Application (in Chambers Judgment)
Outcome
Claim against the 2nd Defendant struck out and dismissed
Legal Topics
Election, Merger, Agent and Principal, Strike Out, Abuse of Process
Source Language
EN
Contract Agency Civil Procedure Garnishment Judgment Enforcement Election Merger Agent and Principal +2 more

Case Brief

Summary, issues, holding and outcome

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Parties

Surson Development Limited

Plaintiff

Shui Hing (Ng Lun) Construction Limited

1st Defendant

Shui On Building Contractors Limited

2nd Defendant

Procedural Posture

Construction and Arbitration Proceedings / Strike Out Application (in Chambers Judgment)

Legal Issues

  1. 1 Whether the plaintiff contracted only with the 1st defendant and thus has no contractual cause against the 2nd defendant
  2. 2 Whether a judgment obtained against an agent constitutes a bar to proceedings against the principal under the doctrine of election/merger
  3. 3 Whether the claim against the 2nd defendant is scandalous, vexatious or an abuse of process

Ratio Decidendi

Because the plaintiff sued and obtained judgment against the 1st Defendant, who on the plaintiff's own pleading was the alleged agent of the 2nd Defendant, the plaintiff elected to pursue the agent; that judgment therefore operates as a bar to proceedings against the alleged principal (the 2nd Defendant) while it subsists. The claim against the 2nd Defendant is also scandalous, vexatious and an abuse of process and must be struck out.

Court Disposition

Claim against the 2nd Defendant struck out and dismissed

Orders

  • The Plaintiff's claim against the 2nd Defendant is dismissed.
  • Costs of the application and of the action to the 2nd Defendant to be taxed if not agreed.