LEE SHING LAI t/a LEE LAI KEE CONSTRUCTION CO v. LOU TONG CHIU KEE CONSTRUCTION CO LTD

LEE SHING LAI t/a LEE LAI KEE CONSTRUCTION CO v. LOU TONG CHIU KEE CONSTRUCTION CO LTD

The court struck out the claim and counterclaim because the delay was inordinate and inexcusable and caused substantial prejudice (faded memories, unavailable witnesses and experts, and untestable reports) such that a fair trial was not possible; the defendant discharged the burden of showing prejudice and the...

Source-derived case information.

Citation
LEE SHING LAI t/a LEE LAI KEE CONSTRUCTION CO v. LOU TONG CHIU KEE CONSTRUCTION CO LTD
Parties
Plaintiff (original Action); 1st Defendant (counterclaim): LEE SHING LAI trading as LEE LAI KEE CONSTRUCTION COMPANY; Defendant (original Action); Plaintiff (counterclaim): LOU TONG CHIU KEE CONSTRUCTION COMPANY LIMITED; 2nd Defendant (counterclaim): CHEUNG WING trading as CHEUNG WING & ASSOCIATES
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 October 2005
Case Number
HCCT46/2005
Procedural Posture
Construction Dispute With Counterclaim (civil) / Chambers Strike‑out Application for Want of Prosecution — Decision
Outcome
Claim and counterclaim struck out for want of prosecution
Legal Topics
Want of Prosecution, Strike Out, Prejudice to Fair Trial, Set Off, Counterclaim, Loss of Memory, Expert Reports
Source Language
en
Civil Procedure Construction Law Evidence Want of Prosecution Strike Out Prejudice to Fair Trial Set Off Counterclaim +2 more

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Summary, issues, holding and outcome

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Parties

LEE SHING LAI trading as LEE LAI KEE CONSTRUCTION COMPANY

Plaintiff (original Action); 1st Defendant (counterclaim)

LOU TONG CHIU KEE CONSTRUCTION COMPANY LIMITED

Defendant (original Action); Plaintiff (counterclaim)

CHEUNG WING trading as CHEUNG WING & ASSOCIATES

2nd Defendant (counterclaim)

Procedural Posture

Construction Dispute With Counterclaim (civil) / Chambers Strike‑out Application for Want of Prosecution — Decision

Legal Issues

  1. 1 Whether the plaintiff's claim should be struck out for want of prosecution due to extensive delay
  2. 2 Whether the delay causes such prejudice to the defendant that a fair trial is impossible
  3. 3 Whether the defendant's conduct on the counterclaim affects entitlement to strike out the plaintiff's claim

Ratio Decidendi

The court struck out the claim and counterclaim because the delay was inordinate and inexcusable and caused substantial prejudice (faded memories, unavailable witnesses and experts, and untestable reports) such that a fair trial was not possible; the defendant discharged the burden of showing prejudice and the defendant's own delay or conduct did not absolve the plaintiff.

Court Disposition

Claim and counterclaim struck out for want of prosecution

Orders

  • Claim struck out for want of prosecution
  • Counterclaim struck out