WILLIAM THOMSON v. ROLAND JOHN JEANS AND ANOTHER

WILLIAM THOMSON v. ROLAND JOHN JEANS AND ANOTHER

Leave to amend was granted in part because the Striking Out Orders were interlocutory and based on pleading/particulars/non-compliance rather than merits, and the proposed amendments were necessary to present positive defences to newly pleaded Quistclose trust claims; however amendments that would resurrect the exact matters struck out (material reliant on instructions from D1 and pleaded beneficial share ownership previously struck out) were barred and refused; leave to file a limited supplemental witness statement of the firm partner (IDW) was granted as relevant, while witness statements from D1 and the liquidator were refused as irrelevant or barred by the striking out effect; costs...

Citation
WILLIAM THOMSON 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
DCCJ3388/2005
Procedural Posture
Civil Action (claims for Return of Investments: Restitution, Conversion, Breach of Trust, Quistclose Trust) / Pre Trial Interlocutory Applications (applications for Leave to Amend Defences and to File Supplemental Witness Statements)
Outcome
Partially allowed: amendment applications allowed except where they would resurrect matters struck out; supplemental witness statement of IDW allowed; witness statements of D1 and the liquidator refused; costs ordered nisi against Tanner De Witt
Legal Topics
Quistclose Trust, Amendment of Pleadings, Striking Out Orders, Res Judicata/abuse of Process, Witness Evidence, Case Management, Costs
Source Language
EN
Equity Trusts Restitution Civil Procedure Professional Conduct Rules Quistclose Trust Amendment of Pleadings Striking Out Orders +4 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

Civil Action (claims for Return of Investments: Restitution, Conversion, Breach of Trust, Quistclose Trust) / Pre Trial Interlocutory Applications (applications for Leave to Amend Defences and to File Supplemental Witness Statements)

Legal Issues

  1. 1 Whether leave should be granted to the 2nd defendant to amend defences shortly before trial given earlier striking out orders and waiver directions
  2. 2 Extent and effect of earlier striking out orders on proposed amendments (what is barred)
  3. 3 Whether the waiver/order to apply by a date barred later amendment applications and effect of stay

Ratio Decidendi

Leave to amend was granted in part because the Striking Out Orders were interlocutory and based on pleading/particulars/non-compliance rather than merits, and the proposed amendments were necessary to present positive defences to newly pleaded Quistclose trust claims; however amendments that would resurrect the exact matters struck out (material reliant on instructions from D1 and pleaded beneficial share ownership previously struck out) were barred and refused; leave to file a limited supplemental witness statement of the firm partner (IDW) was granted as relevant, while witness statements from D1 and the liquidator were refused as irrelevant or barred by the striking out effect; costs...

Court Disposition

Partially allowed: amendment applications allowed except where they would resurrect matters struck out; supplemental witness statement of IDW allowed; witness statements of D1 and the liquidator refused; costs ordered nisi against Tanner De Witt

Orders

  • 2nd Defendant granted leave to file and serve amended defence in DCCJ 3388/2005 within 7 days subject to exclusions (paragraphs 3(g), 12A(b), 14D(a) and last sentence of 3A(e) excluded)
  • P1 granted leave to amend reply consequentially within 14 days