LIU HAO TSING EDUCATION FOUNDATION LTD AND ANOTHER v. LIU TIEH CHING BRANDON (also known as LAU TIT SHING) (LIU KAI HONG GILDA, appointed by the order dated 31 July 2025 to represent the estate of LIU TIEH CHING BRANDON in this appeal)

CACV 198/2023, [2026] HKCA 1065

On Appeal From [2023] HKCFI 1463

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 198 OF 2023

(ON APPEAL FROM HCA NO. 931 OF 2019)

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BETWEEN

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JUDGMENT

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Hon Anthony Chan JA (giving the Judgment of the Court) :

1.  This appeal concerns an application of the Plaintiffs by way of Summons filed on 16 June 2022 (“Summons”) to re-amend their Amended Statement of Claim (“ASOC”). Leave was obtained by them to do so on 9 January 2023 from Master Rita So after a contested hearing. The Defendant (“Brandon”) appealed against Master So’s decision to Wilson Chan J (“Judge”), who allowed the appeal on 31 May 2023. This is the appeal of the Plaintiffs against the order of the Judge.

Issues

2.  There are essentially 3 grounds of appeal advanced in the Notice of Appeal filed on 28 June 2023, namely, (1) judicial copying; (2) the Judge erred in finding factually inconsistent alternatives with the proposed re-amendment; and (3) the Judge erred in finding that the Plaintiffs’ alternative claim in restitution based on mistake was time-barred (“Grounds (1) to (3)”).

3.  In addition, the Plaintiffs seek leave to amend the Notice of Appeal to introduce Ground (4), namely, the Judge was wrong to apply the conventional approach in refusing leave to re-amend, ie, to require the Plaintiffs to show that Brandon did not have a reasonably arguable defence on limitation. This court should exercise the discretion afresh by applying the approach in BGA Holdings Ltd (in liq) v Chu Kong [2025] 5 HKLRD 422 (“BGA/Mastercard Approach) and permit the re-amendment with the provision that the date for limitation proposes be the date of service of the Summons. As indicated at the hearing, the arguments on Ground (4) were received de bene esse.

4.  Further, there is a Respondent’s Notice by which Brandon argues, essentially, that the Judge erred in holding that there was no withdrawal of admission by the Plaintiffs as a result of the proposed re-amendment (“R/Issue”).

5.  In this appeal, Mr Wong SC appeared with Mr Lam for the Plaintiffs. Brandon was represented by Mr Maurellet SC and Mr Ng.

Material Facts

6.  The material facts, much of which had been pleaded in the ASOC, can be succinctly stated. The late Mr Liu Hao Tsing (“Liu Sr”) was a successful businessman. Amongst his assets were 5,000 shares in Overseas Associates Ltd (“OAL”), some of which he wished to pass to his 3 sons, Brandon, the 2^nd Plaintiff (“JC”) and Mr Liu Yiu Ching (“YC”).

7.  On 16 December 2009, Liu Sr signed a statement in Chinese of even date (“Statement”) which was witnessed by YC. The Statement provided for arrangements over Liu Sr’s OAL Shares. According to the Statement, some of the OAL Shares would be held by Brandon, JC and YC at the ratio of 4:3:3. They were not to be sold or transferred by them. Further, clause (3) of the Statement (“Clause (3)”) provided as follows :

“Anyone of the three brothers shall not bring any legal actions against [OAL], [the 1^st Plaintiff] or any of their subsidiaries or any of the Liu Siblings, damage Liu Family’s reputation. If anyone breaches this provision, their shares in [OAL] shall be returned to [the 1^st Plaintiff], and shall be enforced by the executor of my will.”

8.  On 4 December 2013, at a meeting in Liu Sr’s office, after Brandon and JC had read the Statement and orally confirmed that they understood it, Liu Sr, Brandon and JC signed the Statement in the presence of Mr Chu, a Hong Kong solicitor.

9.  On about 12 February 2014, 3,500 of Liu Sr’s shares in OAL were transferred to Brandon, JC and YC in the ratio of 4:3:3. The transfers were completed and registered on or about 12 November 2014.

10.  The matters set out in paras 7 to 9 above were pleaded in [8] to [11] of the ASOC. It was averred in [11] and [12] of the ASOC that the 3,500 shares in OAL were gifted to and held by Brandon, JC and YC subject to the conditions set out in the Statement (“Conditional Gift Claim”).

11.  The ASOC, [14] to [15] and Prayer (1) pleaded that the Statement and the conditions of the gift were breached by Branson by his commencement of HCCW 109/2019 in relation to OAL against, inter alios, JC, YC, Ms Liu Shen Po (their sister), [the 1^st Plaintiff] and OAL. Consequently, Brandon is liable to return the 1,400 shares in OAL that were transferred to him to the Foundation.

12.  At this juncture, it should be mentioned that Brandon, by his Defence which was amended on 9 September 2021 (“ADEF”) challenges the validity of Clause (3) on the basis of uncertainty of its terms (ADEF, [16] to [17A]), illegality and public policy ([18A] to [24] and [27]) and infringement of the rules against perpetuity and remoteness of vesting ([24A]).

The re-amendment

13.  There is a Re-Amended Statement of Claim (“RASOC”) which was filed pursuant to the order of Master So. In the RASOC, the Plaintiffs pleaded the following new matters.

14.  Having regard to the matters pleaded in [8] to [10] (see paras 7 and 8 above), in consideration of their promise to abide by the terms of the Statement, Liu Sr entered into an agreement (“Agreement”) with Brandon, JC and YC on the terms of the Statement, which was partly in writing, namely, the Statement and partly orally and/or by conduct as set out in [10] (see para 8 above) (RASOC, [10A]) (“Contract Claim”).

15.  The 3,500 shares in OAL were transferred from Liu Sr to Brandon, JC and YC in performance of the Agreement (RASOC, [11]). The plea of gift in [11] was deleted.

16.  The Conditional Gift Claim was amended to stand as an alternative plea (RASOC, [12]).

17.  The plea that Brandon commenced HCCW 109/2019 was amended as a breach of the Agreement, with breach of conditions of gift as alternative (RASOC, [14] to [15]).

18.  There is a new paragraph which avers that the Plaintiffs have suffered loss and damage by reason of Brandon’s breach of the Agreement (RASOC, [17]), and a new Prayer (1A) by which damages are claimed for such breach.

19.  Further, there is an alternative claim that if the Agreement or any part thereof is void and/or unenforceable as alleged by Brandon, (i) the parties to the Agreement were under a mistaken belief as to the validity of Clause (3) and/or the Agreement; (ii) Brandon became aware of the mistake whilst holding the 1,400 shares in OAL; and (iii) Brandon has been holding the shares on trust for the 1^st Plaintiff and/or the estate of Liu Sr, and liable to return them (with distributed dividends) to the same (RASOC, [18] and Prayer (1B)) (“Mistake Claim”).

Ground (1) (judicial copying)

20.  It is right to acknowledge that the extent of copying from the submissions of the parties[1] in the judgment below is highly undesirable. On the other hand, it is fair to point out that there are indications in the judgment that the Judge did exercise his own independent mind on the determination of the disputes, eg, he authored an important part of its analysis in paras 24 to 27 of the judgment.

21.  However, it is unprofitable to dwell on this issue because the arguments marshalled below are covered by the other Grounds and the R/Issue, which have to be determined in this appeal anyway.

Ground (2) (factually inconsistent alternatives)

22.  There are 3 sub-issues under this Ground, namely, (i) whether the re-amendment will introduce inconsistent factual alternatives; (ii) if so, whether the Plaintiffs have reasonable ground for advancing inconsistent factual alternatives under O 18, r 12A of the Rules of the High Court, Cap 4A (“RHC”); and (iii) the absence of evidence from the Plaintiffs to make out any reasonable ground under O 18, r 12A.

23.  Mr Maurellet argues that the Plaintiffs’ original case of conditional gift is factually inconsistent with a case of contract, and they are not entitled to run both. The argument is based on the proposition that a gift requires a factual intention by the donor to make a gift (animus donandi[2]) without any consideration in return. In contrast, a contract requires the parties’ intention to create legal relationship, and support by consideration from both sides. The difference in intention will give rise to inconsistent factual alternatives.

24.  It is correct that the intention to make a gift and for entering into contract are different. However, we are unable to agree with Mr Maurellet’s submission. Firstly, there will be no additional fact introduced by the Contract Claim, ie, it is based on the same facts pleaded for the Conditional Gift Claim.

25.  Secondly, we agree with Mr Wong that matters of intention are to be inferred by the court from the circumstances of the case. With the introduction of the Contract Claim, the Plaintiffs seek to contend that the legal effect of the material events was that a contract was made between Liu Sr and his sons. In this regard, it should be noted that there is no plea that at the material times the parties had any specific discussion about entering into a contract or making a gift. The court will have to determine the legal effect of what transpired at the trial. We do not consider that, in these circumstances, the re-amendment will introduce factually inconsistent alternatives.

26.  For the above reasons, the O 18, r 12A arguments are not engaged.

R/Issue (withdrawal of admission)

27.  It is logical to next deal with this issue. There are also 3 sub-issues here: (i) whether the re-amendment (in particular, the Contract Claim) will amount to a withdrawal of admission; (ii) if so, leave is required from the court, and whether leave should be granted in the absence of evidence filed by the Plaintiffs; and (iii) whether leave to withdraw admission should be refused on the ground that the re-amendment is not made in good faith.

28.  Mr Maurellet submits that in the ASOC, [11] to [13][3] and Reply, [10] (which repeated the ASOC, [11] to [13]) it was pleaded that the share transfer was a gift, which constituted an admission of gift (with Liu Sr intending a gift, as opposed to the parties having intention to create legal relationship). In the absence of leave by the court to withdraw the admission, it is not open to the Plaintiffs to plead a contract (or to plead the necessary factual elements of a contract, including the intention to create legal relationship).

29.  With respect, we do not find merit in the submissions. According to O 27, r 1 of the RHC: “… a party to a cause or matter may give notice, by his pleading or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party”. Further, Hong Kong Civil Procedure 2026, vol 1, [27/3/3] referred to admission by pleading as follows :

“Such admissions may be made expressly in a defence or in a defence to a counterclaim, or they may be admissions by virtue of the rules, as where a defendant fails to traverse an allegation of fact in a statement of claim … or there is a default of a defence or a defence is struck out and accordingly the allegations of facts in the statement of claim are deemed to be admitted …”.

30.  We are unable to see how the ASOC can be said to contain any admission of any averment of Brandon’s case, which was pleaded subsequently in his Defence. Moreover, we agree with Mr Wong that it cannot be said that the Plaintiffs had made an admission of Liu Sr’s intention to make a gift. It is a matter to be inferred by the court on the evidence at trial. Furthermore, there is no withdrawal of the Conditional Gift Claim. Under the re-amendment, it will remain as an alternative claim.

31.  In our view, the withdrawal of admission argument is misconceived. Sub-issues (ii) and (iii) are not engaged.

Ground (3) (limitation)

32.  The limitation issue only applies to the Mistake Claim, which will only become relevant in the event that the Agreement is invalid and unenforceable because it or any part of it is void or unenforceable as contended by Brandon. There are again 3 sub-issues: (i) whether the Mistake Claim is made within limitation period; (ii) the lack of evidence to explain how s.26(1)(c) of Limitation Ordinance, Cap 347 (“Ordinance”), which is relied upon by the Plaintiffs, would apply; and (iii) whether the Mistake Claim arises out of the same or substantially the same facts pursuant to O 20, r 5(5) of the RHC.

33.  Pursuant to s.35(1) of the Ordinance, the Mistake Claim is a new claim and, if allowed to be included in this action, would be deemed to have been commenced on the same date as the action (29 May 2019). This is known as the “relation-back principle” and is the source for much disputes under the Ordinance. Pursuant to s.35(3) of the Ordinance, subject to exceptions which are not relevant for the present purpose, a new claim should not be allowed to be made in the course of any action after the expiry of the relevant limitation period.

34.  It is uncontroversial that the relevant limitation period for the Mistake Claim is 6 years from the date on which the cause of action accrued[4]. On the Plaintiffs’ case, the Agreement was concluded on 4 December 2013. It follows that the mistake was made in 2013. The transfer of the OAL shares took place in 2014. Prima facie, the Mistake Claim accrued in that year. The Summons was filed in 2022, more than 6 years after 2014.

35.  To overcome limitation issues, the Plaintiffs rely, firstly, on s.26(1)(c) of the Ordinance according to which: “the period of limitation [for the Mistake Claim] shall not begin to run until [the Plaintiffs[5]] discovered the … mistake … or could with reasonable diligence have discovered it”.

36.  Mr Wong submits that the Mistake Claim is indisputably within time (this is the flip side of the proposition that the Plaintiffs are unable to show that Brandon does not have a reasonably arguable limitation defence), because no issue on the validity of the Statement had ever been raised until July 2021 when Brandon’s Defence was filed, alleging that Clause (3) is void or unenforceable for various reasons pleaded therein[6]. Prior to July 2021, there was nothing to put the Plaintiffs on notice as to any need to investigate the validity of the Statement. After July 2021, it cannot be shown that a reasonable investigation would have revealed the mistake because the invalidity issue (which is denied by the Plaintiffs) will only be resolved at trial.

37.  Mr Wong relies on the 2-stage test in OT Computers Ltd (in liq) v Infineon Technologies AG & anr [2021] QB 1183, [47] :

“… the question what reasonable diligence requires may have to be asked at two distinct stages, (1) whether there is anything to put the claimant on notice of a need to investigate and (2) what a reasonably diligent investigation would then reveal, there is a single statutory issue, which is whether the claimant could with reasonable diligence have discovered (in this case) the concealment. Although some of the cases have spoken in terms of reasonable diligence only being required once the claimant is on notice that there is something to investigate (the ‘trigger’), it is more accurate to say that the requirement of reasonable diligence applies throughout. At the first stage the claimant must be reasonably attentive so that he becomes aware (or is treated as becoming aware) of the things which a reasonably attentive person in his position would learn. At the second stage, he is taken to know those things which a reasonably diligent investigation would then reveal. Both questions are questions of fact and will depend on the evidence. To that extent, an element of uncertainty is inherent in the section.”

38.  We are unable to agree that it is incontrovertible that the Mistake Claim is within time. Put another way, it cannot be shown by the Plaintiffs that Brandon has no reasonably arguable defence on limitation. There are two limbs to s.26(1)(c) of the Ordinance, namely, the discovery of the mistake and the discovery of the mistake with reasonable diligence. The 2-stage test in OT Computer relates to the 2^nd limb.

39.  In respect of discovery of the mistake by the Plaintiffs (the 1^st limb), we are inclined to agree with Mr Maurellet that on the face of Clause (3), there was something to be looked at about the validity of that provision. The terms of Clause (3) might have been seen by the parties to the Agreement as inconsistent with the transfer of the OAL shares as gifted to the 3 brothers[7]. It is conceivable that legal advice was sought on the effect of that Clause[8]. As submitted by Mr Maurellet, Liu Sr and/or the sons might have taken a chance on the enforceability of Clause (3). Such a state of mind may not sit well with the Mistake Claim.

40.  As regards the 2^nd limb, the terms of Clause (3) might have put the father and/or sons on notice of a need to investigate. It will be a question of fact to be resolved at trial. It is perfectly possible that obtaining legal advice would have resolved the issue of validity of Clause (3) or at least disabused the Plaintiffs of their mistake.

41.  For the present purpose, we take the view that the foregoing matters are reasonably arguable.

42.  Mr Maurellet relies on Global Bridge Assets Ltd v Sun Hung Kai Financial Ltd [2012] 4 HKLRD 474, [25], per Kwan JA (as she then was) where the court cited with approval the dicta of Lewison J in Fattal v Walbrook Trustees (Jersey) Ltd [2012] Bus LR D7. In that case, the claimant relied on s.32 of the Limitation Act 1980 (equivalent to s.26 of the Ordinance) to overcome limitation difficulties and Lewison J held at [45] :

“Thus he said, where section 32 is relied on the limitation period will not have expired until six years after the claimant had discovered the fraud etc or could with reasonable diligence have discovered it. I do not consider that this is a ‘get out of jail free’ card on the facts of this case. The principle is that permission to amend should not be granted where the defendant has a reasonably arguable limitation defence. In a case in which it is obvious that section 32 will apply so as to postpone the running of time, then I accept that the court must have regard to that. But in a case in which the application of section 32 is itself disputed, in my judgment the right course is to refuse to allow the amendment and to let the question whether section 32 applies be determined in a fresh action. …”.

43.  In this case, the Plaintiffs’ reliance on s.26 of the Ordinance is disputed, and we are not satisfied that they can show that Brandon has no reasonably arguable limitation defence. We shall examine the question whether they should bring the Mistake Claim in a fresh action when we analyse the BGA/Mastercard Approach.

44.  In respect of the lack of evidence to support the Plaintiffs’ reliance on s.26, we do not believe that in this case the absence of evidence would fundamentally undermine the Plaintiffs’ reliance on s.26. On the other hand, the deficiency in evidence tends to fortify the view that the s.26 issues are no higher than reasonably arguable, and will have to be resolved at trial.

45.  The Plaintiffs also rely on O 20, r 5(5) of the RHC which provides as follows :

“(5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.”

46.  Mr Wong submits that under the Mistake Claim the Plaintiffs seek to recover property transferred under a mistake of law. Brandon’s challenges on the validity of Clause (3) are all matters of law already pleaded in the Amended Defence, [15] to [24A]. Thus, they are to be investigated at trial. Since the Mistake Claim is based on mistake of law, there is no additional fact relating to the state of mind of the parties to the Agreement required to be investigated if the court upholds Brandon’s attacks on Clause (3) at trial.

47.  Mr Wong relies heavily on Shenzhen Futaihong Precision Industry Co Ltd & Ors v BYD Co Ltd & Ors [2018] HKCA 408, [86] :

“86. Lastly, as to how the Stage 3 test (‘arising out of the same or substantially the same facts’) should be approached, the relevant propositions have been summarized in Diamandis v Wills [2015] EWHC 312 (Ch) at §49:

‘(1) “Same or substantially the same” is not synonymous with “similar”.

(2) Whilst in borderline cases, the answer to this question is or may be substantially a “matter of impression”, in others, it must be a question of analysis: Ballinger v Mercer Ltd [2014] 1 WLR 3597 at §§35 and 36.

(3) The purpose of the requirement at Stage 3 is to avoid placing the defendant in a position where he will be obliged, after the expiration of the limitation period, to investigate facts and obtain evidence of matters completely outside the ambit of and unrelated to the facts which he could reasonably be assumed to have investigated for the purpose of defending the unamended claim.

(4) It is thus necessary to consider the extent to which the defendants would be required to embark upon an investigation of facts which they would not have been concerned to investigate: Ballinger §38. At Stage 3 the court is concerned at a much less abstract level than Stage 2; it is a matter of considering the whole range of facts which are likely to be adduced at trial: Finlan v Eyton Morris Winfield [2007] 4 All ER 143 at §§56 and 57 citing Smith v Henniker-Major at §96.

(5) Finally, in considering what the relevant facts are in the original pleading a material consideration are the factual matters raised in the defence: see Berezovsky v Abramovich §73 and Goode v Martin [2002] 1 WLR 1828 where the Court of Appeal interpreted CPR 17.4(2) [equivalent to O 20, r 5(5) of the RHC] so as to produce a just result where an amendment involved the introduction of no new facts. There the facts in question had been raised in the defence, though not in the original statement of claim.’”

48.  Based on the above dicta, Mr Wong argues that there is no need for complete overlap between what Brandon has to investigate without and with the Mistake Claim (see also Lam Yee Hung v Chinachem Charitable Foundation Ltd [2018] HKCFI 2404, [4] and [27]).

49.  There is force in Mr Maurellet’s submission that, in truth, the mistake in question is one of belief that Clause (3) would be effective and not one of law. Indeed, the plea in para 18(1) of the RASOC is “a mistaken belief as to the validity of [Clause (3)] and/or the Agreement”.

50.  However, the more important point here is that in the course of his submissions Mr Wong accepted that the mistaken belief pleaded under para 18(1) is a new fact which would require investigation by Brandon should the re-amendment be allowed, and that investigation goes outside what he would be required to investigate without the Mistake Claim.

51.  Can it be said that the Mistake Claim nevertheless meets the “substantially the same facts” requirement under O 20, r 5(5)? In our view, the answer is in the negative. We agree with Mr Maurellet that to defend the Mistake Claim, Brandon would have to investigate whether Liu Sr, JC and/or YC were acting under any belief as to the validity of Clause (3). Discovery may be necessary for that purpose.

52.  Before moving onto the BGA/Mastercard Approach, it should be noted that the Mistake Claim is partly made up of the allegations of Brandon that the Agreement or part thereof is void and/or unenforceable (see RASOC, [18]). There is a question whether the Plaintiffs may rely upon matters pleaded in the ADEF to satisfy O 20, r 5(5) in light of it wording: “… if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by [the Plaintiffs]” (emphasis added).

53.  In Delco Participation BV v Chiho Environmental Group Ltd [2020] 5 HKLRD 712, [50], in an obiter dictum, Kwan VP noted the difference in wording between the English Limitation Act 1980, s.35(5)[9] and s.35(6)(a)[10] of the Ordinance (the latter is more restrictive). In that case, for the purpose of considering whether the new claim came within s.35(5) and (6) of the Ordinance and O 20, r 5(5), the relevant facts for comparison should be the facts pleaded by the amending party and it was irrelevant to have regard to the pleading of the opposition.

54.  This point does not arise in this case because Mr Maurellet had accepted that for the present purpose the court may have regard to Brandon’s allegations on the invalidity of the Agreement.

Ground (4) (BGA/Mastercard Approach)

55.  In this case, the Judge applied the conventional approach by refusing leave to re-amend the ASOC when the Plaintiffs were unable to show that Brandon did not have a reasonably arguable defence on limitation.

56.  In BGA, supra, this court adopted a new approach used by the English Court (see WM Morrison Supermarkets plc & Ors v MasterCard Incorporated & Ors [2013] EWHC 3271 (Comm) which was the first of a line of cases) to allow amendment notwithstanding an arguable limitation defence, but with a provision which side-steps the relation-back issue, eg, that the date for limitation purposes be the date of the amendment application. With the new approach, the amending party will not be required to bring a fresh action for the new claim and subsequently apply to have it consolidated with the original action. It can also avoid expensive and lengthy interlocutory battle over, eg, the application of O 20, r 5(5).

57.  Whether to apply the new approach is a matter of discretion of the court. The discretion should be exercised with caution given its potential to subvert the purpose underlying the Ordinance, as well as in a disciplined manner. With Mr Wong’s helpful input, a number of relevant considerations can be identified from 3 English authorities (DR Jones Yeovil Ltd v Drayton Beaumont Services Ltd [2021] EWHC 1971 (TCC), [45]-[47]; The Duke of Sussex v New Group Newspapers Ltd [2024] EWHC 1208 (Ch), [89], [184]-[185] and [187]-[188]; and Fay of London Ltd v Axis Speciality Europe SE [2025] EWHC 1334 (Ch), [70] and [72]) as follows :

Cases where the new approach may be applied

(1) Where at least part of the new claim may not be statute barred;

(2) Where the new claim is sufficiently bound up with the issues in the existing proceedings to make an order for consolidation (or trial together) likely or even inevitable;

(3) Where the new claim is based on very similar facts to those already in issue in the existing proceedings.

Cases where the new approach may not be appropriate

(4) Where the respondent may be prejudiced (eg, by having to deal with new issues in a short period of time) as compared with its position if new proceedings have to be issued;

(5) Where delay may be caused to the trial;

(6) Where it would add to the burdens of case management;

(7) Where the respondent has a strong case for summary (or prior) determination of the limitation issue;

(8) Where the original claim will almost be replaced by a new claim based on different facts.

58.  Mr Wong submits that this court should allow the re-amendment following BGA, with the provision that the date for limitation purposes be the date of service of the Summons to address any concern from the doctrine of “relation-back”. Under the BGA approach, the question of whether and when the Plaintiffs discovered the mistake underlying the Mistake Claim, and whether the Plaintiffs could have discovered the mistake with reasonable diligence for the purpose of s.26(1)(c) of the Ordinance, may be determined at the trial of this action. Since the Mistake Claim is an alternative relevant only if the Plaintiffs fail in their primary case at trial, the exercise of discretion based on the BGA/Mastercard Approach is compelling, said Mr Wong.

59.  Whilst we recognise the merits in Mr Wong’s submissions, it should not be overlooked that the BGA/Mastercard Approach is actually a new submission which was not advanced before the Judge. It is not simply a fresh point of law, which this court may be more inclined to entertain on appeal. The Approach involves an exercise of discretion. The Judge was never asked to embark upon that exercise and this court is deprived of the Judge’s view in this regard. Further, we agree with Mr Maurellet that to allow the new point to be run on appeal would deprive Brandon of the opportunity to adduce evidence relevant to the exercise of discretion by the court.

60.  Furthermore, there is no evidence to explain why the point was not taken below (see Cathay Pacific Airways Flight Attendants Union v Director-General of Civil Aviation [2007] 2 HKLRD 668, [45(5)]). Although BGA was decided after the judgment below (31 May 2023), the first English case on the new approach was decided in 2013. This court is left in the dark as to why the point was not taken and whether there was, as Mr Maurellet put it, a deliberate decision by the Plaintiffs to take an all or nothing approach.

61.  In the premises, we decline the application for leave to amend the Notice of Appeal.

62.  For completeness, had we taken the opposite view and adopt the BGA/Mastercard Approach, we would have inclined to order that the date for limitation purposes should be the date of this Judgment notwithstanding Mr Wong’s submission that the weight of the authorities is to adopt the date of the application to amend (see BGA, [17] and [45]; Mastercard Inc & Ors v Deutsche Bahn AG & Ors [2017] EWCA Civ 272 [67]-[69]; and Duke of Sussex, [71]). The reason is that the re-amendment application has dragged on for 4 years. The Plaintiffs could have chosen to issue a new writ for the Mistake Claim in 2022, and Brandon should not be prejudiced by the considerable delay in resolving the re-amendment.

Disposition

63.  For the above reasons, we set aside the order of the Judge and allow the re-amendment of the ASOC with the exception of the Mistake Claim[11]. The Mistake Claim will have to be brought in a new action if the Plaintiffs wish to pursue it.

64.  The parties should endeavour to agree the details of the order to be made by this court, failing which a joint letter in succinct terms should be written to this court to resolve any disagreement. Unreasonableness of the parties may be penalized on costs.

65.  The Respondent’s Notice as well as the Summons filed on 15 April 2026 for leave to amend the Notice of Appeal are dismissed. The costs of the Respondent’s Notice and the said Summons are to be paid by Brandon and the Plaintiffs respectively.

66.  The Plaintiffs have partly succeeded in this appeal. Putting aside Ground (1) which does not require determination in this appeal, the Plaintiffs have won on Ground (2) and the R/Issue (2 of the remaining 4 issues). On a broad brush assessment, the Plaintiffs should be entitled to 50% of their costs of this appeal, as well as 50% of the costs before the Master and the Judge with a certificate for two counsel for the hearing before the Judge and this appeal. We so order. We note that the costs before the Master had been summarily assessed. We order that the costs before the Judge and this appeal are to be taxed, if not agreed.

67.  The above costs order is made on nisi basis, which shall become absolute 14 days from the date of this Judgment in the absence of any variation application. Any such application will be disposed of on paper.

68.  Last but not least, we are grateful to counsel for their assistance.