Hong Kong Case Law: Decisions & Judgments

Topic

Limitation ordinance s35

Legal area

Court

27 Mar 2024

BLOCKCHAIN GROUP COMPANY LTD (FORMERLY PING SHAN TEA GROUP LTD AND HUAFENG GROUP HOLDINGS LTD) (IN LIQUIDATION) v. PKF HONG KONG LTD (FORMERLY PKF (A FIRM))

Citation

[2024] HKCFI 903
Court

Court of First Instance
Case number

HCA297/2022

The appeal is dismissed because the court found the writ's description evidenced that the liquidators intended to sue PKF Hong Kong Limited as a distinct entity rather than a mere misnaming of PKF (a firm), so Order 20 r 5(3) did not apply; alternatively the Plaintiff failed to show it fell within any of the five exhaustive categories in Order 15 r 6(6), so substitution after expiry of limitation was not permitted; accordingly no amendment or substitution was allowed and the appeal failed.
17 Dec 2021

DELCO PARTICIPATION B.V. v. HWH HOLDINGS LTD

Citation

[2021] HKCA 1889
Court

Court of Appeal
Case number

CACV108/2020

The Court granted leave to appeal to the Court of Final Appeal because the question whether a time-barred debt relied on for equitable set-off precludes a counterclaim under section 35 Cap.347 is of general importance, reasonably arguable and meets the CSAV criteria; the Court of Appeal had held that the proposed amendments to plead the Chern Debt for set-off did not constitute a "new claim" such that s35 was engaged.
20 Nov 2020

DELCO PARTICIPATION B.V. v. CHIHO ENVIRONMENTAL GROUP LTD AND OTHERS

Citation

[2020] HKCA 950
Court

Court of Appeal
Case number

CACV107/2020

The Court held the proposed amendments pleading the Chern Debt did not constitute a 'new claim' within s35 such that the Limitation Ordinance was engaged; the pleaded matter was properly in substance a defence of equitable set-off and estoppel by convention and therefore the judge below erred in refusing leave to amend; appeals allowed and leave to amend granted.
23 Sept 2020

CHENG HUNG KIT AND OTHERS v. TASTY CATERING GROUP LTD AND OTHERS

Citation

[2020] HKCFI 2477
Court

Court of First Instance
Case number

HCA1137/2011

The counterclaim as against the 13th defendant (JJ) is struck out because no relief was pleaded against him and the proposed amendments to add him are an abuse of process (a separate action already exists, no new loss identified, and duress does not support damages absent an actionable tort). The Amendment Summons to introduce a new cause of action impugning the August 2011 EGM is dismissed because the cause accrued after the date of the writ and does not satisfy Limitation Ordinance s35(6) and Order 20 requirements, and is therefore time‑barred and not properly introduced by amendment.
16 Dec 2016

ALLEN & OVERY (A FIRM) AND ANOTHER v. BEIJING TONG GANG DA SHENG TRADE CO LTD

Citation

ALLEN & OVERY (A FIRM) AND ANOTHER v. BEIJING TONG GANG DA SHENG TRADE CO LTD
Court

Court of Final Appeal
Case number

FACV2/2016

The court held that substitution or joinder of a party after the limitation period constitutes a "new claim" under s35 and is subject to s35 and the rules of court; GBRE was a new party at the time of the joinder application because it had ceased to be a party and the purported assignment to the plaintiff was champertous and ineffective; Order 20 r 5(3) did not apply because the applicant's error was one of legal rights (validity of assignment), not a mistake of name or identity, therefore the joinder could not be permitted and the refusal to allow the amendment was correct.
7 Nov 2003

LI TIN SANG v. POON BUN CHAK

Citation

LI TIN SANG v. POON BUN CHAK
Court

Court of Appeal
Case number

CACV119/2003

The Court held the amended statement of claim did not introduce a new cause of action; even if it did, the new cause of action arose out of the same or substantially the same facts as the original claim, and the original pleading did in fact allege a contract (albeit defectively with respect to consideration) which was curable by amendment, therefore the amendments were permissible under s35 Limitation Ordinance and Order 20 r 5(5), and the appeal was dismissed.
24 Jul 1992

BOUYGUES S A AND OTHERS v. RED SEA INSURANCE LTD.

Citation

BOUYGUES S A AND OTHERS v. RED SEA INSURANCE LTD.
Court

Court of Appeal
Case number

CACV3/1992

The Court held the judge's order dismissing the counterclaim should be set aside because the proposed amendment did not introduce a new cause of action but sought to plead the same substantive claim on the basis of Saudi law and therefore fell within Limitation Ordinance s35 and Order 20 r5; Dicey sub-rule (2) relaxing choice of law is not part of Hong Kong law so the proposed 'direct' cause of action based solely on that sub-rule was unsustainable, but the 'indirect' cause (insurer enforcing insureds' rights under Saudi law) could not be denied at strike out and should be permitted to be adv…

Hong Kong Case Law

BLOCKCHAIN GROUP COMPANY LTD (FORMERLY PING SHAN TEA GROUP LTD AND HUAFENG GROUP HOLDINGS LTD) (IN LIQUIDATION) v. PKF HONG KONG LTD (FORMERLY PKF (A FIRM))

DELCO PARTICIPATION B.V. v. HWH HOLDINGS LTD

DELCO PARTICIPATION B.V. v. CHIHO ENVIRONMENTAL GROUP LTD AND OTHERS

CHENG HUNG KIT AND OTHERS v. TASTY CATERING GROUP LTD AND OTHERS

ALLEN & OVERY (A FIRM) AND ANOTHER v. BEIJING TONG GANG DA SHENG TRADE CO LTD

LI TIN SANG v. POON BUN CHAK

BOUYGUES S A AND OTHERS v. RED SEA INSURANCE LTD.