Hong Kong Case Law: Decisions & Judgments

Topic

Section 35 limitation ordinance

Legal area

Court

5 Aug 2021

SECURITIES AND FUTURES COMMISSION v. “C”AND OTHERS

Citation

[2021] HKCFI 2112
Court

Court of First Instance
Case number

HCMP727/2008

The judge held that permitting the SFC to amend and add the S.213(2)(b) claim and the attendant consideration of limitation issues was procedural and did not determine China United's substantive rights for the purposes of Order 59 r21(1)(a) RHC; accordingly leave to appeal was required and the proposed grounds did not satisfy the test for granting leave, which was refused and costs ordered against China United.
16 Apr 2020

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

Citation

[2020] HKCFI 608
Court

Court of First Instance
Case number

HCA2939/2016

Leave to appeal was granted because the proposed appeal raises a real arguable question whether the judge erred in holding the Chern Debt amendments introduced a new claim engaging s35 Limitation Ordinance and because prudence required leave to avoid approbation and reprobation and procedural unfairness; the court directed timetables for lodging the Notices of Appeal and ordered costs of the summonses to be in the appeal.
16 Apr 2020

DELCO PARTICIPATION B.V. v. HWH HOLDINGS LTD

Citation

[2020] HKCFI 608
Court

Court of First Instance
Case number

HCA2943/2015

Leave to appeal was granted because the proposed appeal raised a substantial question whether the judge erred in holding the proposed amendments concerning the Chern Debt constituted a claim of set-off engaging s35 of the Limitation Ordinance and whether Delco had a reasonably arguable limitation defence; it was proper and prudent to require leave given those central contested factual and legal findings and the potential for approbation and reprobation if appellants relied on the trial judge's findings to avoid leave then challenged them on appeal.
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

FACV4/2016

The joinder/substitution of GBRE constituted a new claim under s35 by virtue of addition/substitution of a new party; s35(3) therefore barred the amendment made after the relevant limitation period unless a rules-of-court exception applied; Order 20 r5(3) did not apply because the error was as to the validity of the assignment (legal rights) not a nomenclature mistake; the assignment was champertous and void so the amendment was impermissible and the Deputy Judge's refusal to allow the amendment (and the strike out) was restored.
23 Dec 2015

CHINA RAILWAY INVESTMENTS GROUP (HONG KONG) LTD v. ETERNITY PROFIT INVESTMENTS LTD AND ANOTHER

Citation

CHINA RAILWAY INVESTMENTS GROUP (HONG KONG) LTD v. ETERNITY PROFIT INVESTMENTS LTD AND ANOTHER
Court

Court of First Instance
Case number

HCA701/2013

The new causes pleaded in the ASC were new claims for limitation purposes and, on the plaintiff's own pleaded case, accrued more than six years before the ASC was filed; the ASC does not arise out of the same facts or substantially the same facts as the original pleaded cause of action, and the plaintiff is bound by its earlier pleadings; therefore the statutory and rule conditions for allowing the late amendment were not satisfied and the appeal must be dismissed.
11 Aug 2006

MOHAMMAD MUTLOOB v. WISE SECURITY LTD AND OTHERS

Citation

MOHAMMAD MUTLOOB v. WISE SECURITY LTD AND OTHERS
Court

Court of First Instance
Case number

HCPI410/2005

The court lacked jurisdiction to join the third party because the plaintiff failed to show that addition of the third party was necessary for determination of the original action as required by section 35(7)(b) LO and O.15 r.6; the existing claim against the employer could be maintained without joinder, and no justification for overriding the limitation period was provided; accordingly the application to join and to amend pleadings was dismissed.
11 Jul 2006

BOWARDLEY ENTERPRISES LTD AND ANOTHER v. MILLENNIUM GROUP LTD

Citation

BOWARDLEY ENTERPRISES LTD AND ANOTHER v. MILLENNIUM GROUP LTD
Court

Court of Appeal
Case number

CACV242/2005

The Court held Lim Ban Thoon was not decided per incuriam and remains binding; applying the purposive interpretation of section 35(3) in context of the rules of court, the relevant time for limitation is the date the application to amend is filed (the summons), not the date the court grants leave or the amendment is engrossed, and therefore the judge was entitled to allow the amendment; Order 15 r.6(6)(a) did not apply to these facts.
12 Apr 2006

KEEN LLOYD ENERGY LTD. v. BANK OF CHINA (HONG KONG) LTD.

Citation

KEEN LLOYD ENERGY LTD. v. BANK OF CHINA (HONG KONG) LTD.
Court

Court of First Instance
Case number

HCA1299/2004

Leave to amend was set aside because the amendments introduced new causes of action (a second misrepresentation and a contract) that were time-barred on the date of the summons to amend and the plaintiff failed to demonstrate that the defendant had no reasonably arguable limitation defence or that the amendments satisfied s35(5)/(6) and O.20 r.5(5); additionally the amended pleadings disclosed no reasonable cause of action (representations were mere promises and the contract was inadequately pleaded), so the amended writ and statement of claim were struck out and the original writ and indorse…
4 Nov 2003

LEE TAK (or TUCK) YAN AND OTHERS v. THE PRUDENTIAL ENTERPRISE, LTD AND OTHERS

Citation

LEE TAK (or TUCK) YAN AND OTHERS v. THE PRUDENTIAL ENTERPRISE, LTD AND OTHERS
Court

Court of First Instance
Case number

HCA4225/2001

The summons was unnecessary and poorly framed because the parties agreed a deemed commencement date which preserved the 6th defendant's limitation position; the 6th defendant failed to show justification for the application and the plaintiffs should recover the costs of the application.