AU YEUNG WAN AND ANOTHER v. TSUI SAU YING AND ANOTHER

AU YEUNG WAN AND ANOTHER v. TSUI SAU YING AND ANOTHER

O.16 r.1(2) requires leave where a defendant issues a third party notice after serving a defence when the action was begun by writ; the court must give effect to the clear statutory text and the notices issued by the 1st defendant without leave are set aside. An application for leave must follow O.16 r.2(1) procedures (ex parte application supported by affidavit). The defendants' application for an order for non-party costs against the former 2nd plaintiff was dismissed as misconceived and addressed by the costs rules (O.62).

Citation
AU YEUNG WAN AND ANOTHER v. TSUI SAU YING AND ANOTHER
Parties
1st Plaintiff: Au Yeung Wan; 2nd Plaintiff (discontinued); 1st Third Party: Ho Wing Chung Pauline; 1st Defendant: Tsui Sau Ying; 2nd Defendant: Tsui Sau Ling; 2nd Third Party: Ho Tze Chiu; 3rd Third Party: Ho Wing Yuen; 4th Third Party: Ho Tze Kin; 5th Third Party: Ho Tsz Wai
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 May 2015
Case Number
HCA484/2010
Procedural Posture
High Court Action (civil) / Case Management Hearing (interlocutory Application on Third Party Notice and Non Party Costs)
Outcome
Third party notices issued by the 1st defendant without leave set aside; defendants' application for non-party costs dismissed; specified costs directions given.
Legal Topics
Third Party Notice, Order 16 R.1(2), Leave to Issue Third Party Notice, Non Party Costs, Order 62 R.10, Ex Parte Application, Case Management Powers
Source Language
EN
Civil Procedure Probate and Administration Trusts Costs Case Management Third Party Notice Order 16 R.1(2) Leave to Issue Third Party Notice +4 more

Case Brief

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Parties

Au Yeung Wan

1st Plaintiff

Ho Wing Chung Pauline

2nd Plaintiff (discontinued); 1st Third Party

Tsui Sau Ying

1st Defendant

Tsui Sau Ling

2nd Defendant

Ho Tze Chiu

2nd Third Party

Ho Wing Yuen

3rd Third Party

Ho Tze Kin

4th Third Party

Ho Tsz Wai

5th Third Party

Procedural Posture

High Court Action (civil) / Case Management Hearing (interlocutory Application on Third Party Notice and Non Party Costs)

Legal Issues

  1. 1 Whether leave is required under O.16 r.1(2) to issue a third party notice where the defendant has served a defence
  2. 2 Whether an amended Statement of Claim can be treated as the first writ for the purposes of O.16 r.1(2) so as to avoid the leave requirement
  3. 3 Whether the court's case management powers under the CJR permit dispensing with the procedural requirement for leave

Ratio Decidendi

O.16 r.1(2) requires leave where a defendant issues a third party notice after serving a defence when the action was begun by writ; the court must give effect to the clear statutory text and the notices issued by the 1st defendant without leave are set aside. An application for leave must follow O.16 r.2(1) procedures (ex parte application supported by affidavit). The defendants' application for an order for non-party costs against the former 2nd plaintiff was dismissed as misconceived and addressed by the costs rules (O.62).

Court Disposition

Third party notices issued by the 1st defendant without leave set aside; defendants' application for non-party costs dismissed; specified costs directions given.

Orders

  • The third party notice requires leave and the ones issued by the 1st defendant without leave of the court be set aside
  • The defendants' application for non-party costs be dismissed