HANS-JUERGEN BOEWE v. ROLAND JOHN JEANS AND ANOTHER

HANS-JUERGEN BOEWE v. ROLAND JOHN JEANS AND ANOTHER

The court exercised its discretion to permit most of the 2nd defendant's late amendments because the Striking Out Orders were procedural/pleading in nature and did not bar all re-pleading, the amendments were necessary to answer newly pleaded Quistclose trust claims, delay was not in bad faith and prejudice to plaintiffs could be managed; however the court refused amendments and evidence that would resurrect the exact matters previously struck out (instructions from the 1st defendant and pleaded beneficial share ownership matters) and refused witness statements from D1 and a liquidator which relied on struck-out material; permitted IDW's supplemental statement and ordered costs against...

Citation
HANS-JUERGEN BOEWE v. ROLAND JOHN JEANS AND ANOTHER
Parties
Plaintiff: William Thomson; Plaintiff: Hans-Juergen Boewe; 1st Defendant: Roland John Jeans; 2nd Defendant: Tanner De Witt (a firm)
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
18 July 2013
Case Number
DCCJ3389/2005
Procedural Posture
District Court Civil Action / Case Management/pre Trial Applications for Leave to Amend Pleadings and to File Supplemental Witness Statements
Outcome
Partial allowance of amendment applications and partial allowance of witness statement application; certain pleaded matters and two proposed witness statements refused; costs ordered nisi against 2nd defendant
Legal Topics
Amendment of Pleadings, Striking Out, Quistclose Trust, Money Had and Received, Abuse of Process, Witness Statements, Costs and Case Management
Source Language
EN
Civil Procedure Trusts Restitution Solicitors' Professional Conduct Amendment of Pleadings Striking Out Quistclose Trust Money Had and Received +3 more

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Parties

William Thomson

Plaintiff

Hans-Juergen Boewe

Plaintiff

Roland John Jeans

1st Defendant

Tanner De Witt (a firm)

2nd Defendant

Procedural Posture

District Court Civil Action / Case Management/pre Trial Applications for Leave to Amend Pleadings and to File Supplemental Witness Statements

Legal Issues

  1. 1 Whether the 2nd defendant may be granted leave to amend defences shortly before trial
  2. 2 Effect of prior Striking Out Orders on proposed amendments
  3. 3 Whether the Waiver Orders barred late amendment applications

Ratio Decidendi

The court exercised its discretion to permit most of the 2nd defendant's late amendments because the Striking Out Orders were procedural/pleading in nature and did not bar all re-pleading, the amendments were necessary to answer newly pleaded Quistclose trust claims, delay was not in bad faith and prejudice to plaintiffs could be managed; however the court refused amendments and evidence that would resurrect the exact matters previously struck out (instructions from the 1st defendant and pleaded beneficial share ownership matters) and refused witness statements from D1 and a liquidator which relied on struck-out material; permitted IDW's supplemental statement and ordered costs against...

Court Disposition

Partial allowance of amendment applications and partial allowance of witness statement application; certain pleaded matters and two proposed witness statements refused; costs ordered nisi against 2nd defendant

Orders

  • Leave granted for 2nd defendant to file and serve amended defence in DCCJ 3388/2005 within 7 days per draft annexed to summons dated 7 May 2013 save that paragraphs 3(g), 12A(b), 14D(a) and the last sentence of paragraph 3A(e) are excluded
  • Leave granted for Plaintiff William Thomson to amend his reply consequentially within 14 days