TSUI PING SUM AND ANOTHER v. CHAN KA LOK AND OTHERS

HCA 432/2021

[2026] HKCFI 1966

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 432 OF 2021

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BETWEEN

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DECISION

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1.  This appeal is brought by Tsui Ping Sum (徐秉沁) (“P1”) and Sky Unique Development Company Limited (天唯發展有限公司) (“P2”) (collectively, the “Plaintiffs”) against the order of Master Isaac Chan dated 18 November 2025 (the “Order”) refusing certain re-re--amendments[1] that the Plaintiffs wished to make to their Re-Amended Statement of Claim (“RASOC”).

2.  My Decision is set out below.

The Parties

3.  P1 acted for herself and on behalf of P2, a construction company. P1 is P2’s sole director and major shareholder.

4.  D1-D3 are indigenous male villagers, each being the registered owner of 1 of 3 adjoining plots of land in Ho Chung New Village, Sai Kung (the “3 Lots”) and each holding a government building licence to construct a 3-storey residential building on his lot. D1 is the owner of Lot 1, D2 is the owner of Lot 2 and D3 is the owner of Lot 3.

5.  D5 is P1’s younger sister. D6 is D5’s friend.

6.  P1 claims that D7 cooperated with D1-D3 in a joint venture for the development of the 3 Lots which D7 denies.

7.  D4 is an Indonesian national who was an early investor in the development of Lot 1 and who had a power of attorney from D1.

Representation

8.  The parties, except for D5 who appeared in person, are represented by Counsel: (a) Mr Kwan Ping Kan and Mr Samuel Leung represented the Plaintiffs; (b) Mr Stony Chan represented D1-D3 and D7; and (c) Ms Jennifer A Tse represented D4 and D6.

Relevant background

9.  These proceedings concern a construction project over the 3 Lots.

10.  In outline[2],

(1) P1 claims that in February 2019, D5 and D6 met with P1 and made representations about a joint venture to develop the 3 Lots. They told P1 that they were (i) authorised agents of D1-D3 and D7 and 3 Indonesian investors (one of whom is D4) who invested in the 3 Lots and sought P2’s quotation for the construction and decoration of residential buildings on the 3 Lots[3]; (ii) investors could invest in the development of the 3 Lots; (iii) the registered owner would grant a power of attorney (“POA”) to the investor and, if more than one, to one of the investors to facilitate construction on the land; and (iv) at the conclusion of the transaction, the investor would get the whole or a proportionate share of the building.

(2) On 4 April 2019 D5 informed P1 that of the 3 Indonesian investors only D4 remained an investor (of Lot 1).

(3) Based on those representations, P1 decided to invest in 58% of the development of Lot 3, alongside D5 (14%) and D6 (28%) who informed P1 that their investments in Lot 3 had been agreed by D1-D3 and D7.

(4) On 6 April 2019, P1 entered into an oral agreement with D5 and/or D6 (on behalf of D1-D3 and D7) (the “Investment Agreement”) to that effect. P1 would be responsible for 58% of the development costs of Lot 3.

(5) On about 26 April 2019, the investors (being D4, P1, D5, D6 and the investors in Lot 2 (a Mr Hui and a Mr Pang)) engaged P2 as the main contractor to build 3 residential houses on the 3 Lots pursuant to a partly written and partly oral agreement (the “Construction Agreement”)[4].

(6) P1 invested $4.93 million in total. She paid a sum of $3.645 million to D5 who then transferred the same to D7. P1 then paid the remaining $1.285 million to P2 as part of her share of the construction fees.

(7) D5 was elected by the Lot 3 Investors to be the person to whom D3 would grant a POA.

(8) On 9 May 2019, P1, D5 and D6 signed a written agreement (the “Lot 3 Investors Agreement”) for the development of Lot 3.

(9) On 11 May 2019, D5 sent photographs of two documents, in the names of D2 and D3 to solicitors for POA preparation and one of them stated that D5 would be assigned by D3 as donee of the POA for Lot 3.

(10) P2 commenced construction in May 2019 and received progress payments. Construction proceeded on the 3 Lots to the knowledge of D1-D3 but scheduled payments to P2 ceased in late September 2019.

(11) When the Plaintiffs approached the bank for a loan, they were told to provide a POA. On 14 April 2020, P1 discovered that D3 never provided D5 (the representative of Lot 3 Investors,) with a power of attorney over Lot 3 as the Investment Agreement required.

(12) Since 15 April 2020, P1 has not been able to communicate with D6 who had blocked all communications from P1.

(13) In late October 2020, P1 learned that the Defendants had engaged a replacement contractor to continue building on the 3 Lots, replacing P2 without compensation.

(14) P1 reported the fraud involving all the Defendants to the police.

Procedural history

11.  The Plaintiffs commenced these proceedings on 19 March 2021 and amended their Statement of Claim (“SOC”) on 23 September 2021(“ASOC”).

12.  On 15 April 2024, the Plaintiffs filed the RASOC.

13.  The parties filed witness statements in November 2024.

14.  At the CMC held on 20 March 2025, Master Hui ordered the parties to write jointly to the Court by 2 May 2025 on progress and for proposed directions.

15.  On 8 May 2025, the Master ordered the parties to take out an application to amend their pleadings (if so advised) within 42 days (the “May 2025 Order”).

16.  By their Amendment Summons dated 18 July 25, taken out 4 weeks after the deadline imposed by the May 2025 Order and some 4.5 years after the filing of their SOC, the Plaintiffs applied to re-amend the RASOC by annexing a draft Re-Re-Amended SOC (“RRASOC[5]”) to the Amendment Summons.

Applicable legal principles

17.  RHC Order 20, rule 8 (1) empowers the Court to allow amendments to a pleading “[f]or the purpose of determining the real question in controversy between the parties to any proceedings”. However, it shall not do so “unless it is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs:” see rule 1(A).

18.  While pure delay is not sufficient to bar an application to amend, the Court may disallow an application for amendment where there is unexplained undue delay, a vague proposed amendment and doubts over the soundness of the proposed amendment: Hong Kong Civil Procedure 2026 (“HKCP”) at §20/8/21; Tse Man Yiu v Tse Man Wai [2025] HKCFI 967 at §§11 and 40.

19.  The Court will not allow an inconsistent or useless amendment nor an addition of some irrelevant matters, nor an amendment which fails to give the necessary material facts or particulars: HKCP at §20/8/24.

20.  Where a party alleges fraud, in addition to the general requirements of properly particularized pleadings, a special rule that allegations of fraud be pleaded distinctly and with the utmost particularity applies, adopting the rule in Davy v Garrett (1878) 7 Ch D 473 at 489: see the Court of Appeal’s judgment in Aktieselskabet Dansk Skibsfinansiering v Wheelock Marden & Co Ltd & Ors [1994] 2 HKC 264 at 270D-E (“ADS”) and HKCP at §18/12/18.

21.  The requirements for pleading conspiracy are set out in ADS at 272D-G:

“When it comes to a claim in the tort of conspiracy, what the pleader has to do in regard to pleading an overt act or overt acts is this. He has to plead at least one overt act which is the act of all the alleged conspirators or, failing that, a number of overt acts which include at least one act on the part of each conspirator. And the overt act or overt acts pleaded must be such as to show: (i) that the conspiratorial agreement alleged against the defendants had been entered into by each and every one of them; (ii) that the agreement, and not merely the intention of one person alone, was implemented; and (iii) that such implementation caused the damage complained of.

If the pleader fails to do that, then, depending on whether the failure is in respect of all the defendants or only some or one of them, then either the plea is liable to be struck out altogether or it is liable to be struck out as against some or one of the defendants.”

22.  The CA in ADS clarified (at 107 H-I) that allegations of knowledge, common purpose, and the making of misrepresentations by one person does not require any agreement, and it does not show that any agreement has been made.

23.  In relation to pleading fraud or dishonesty, particulars of facts which are consistent with honesty or innocence are not sufficient as they lack utmost particularity and must be rejected: Song Congying v Cheng Wai Kin [2020] HKCFI 2751 at §38 and in Li Shiu To v Cheung Pik Ng [2018] 1 HKLRD 934 at §54 adopting the principles set out in Lord Millett’s judgment in Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 at §§184-186[6].

24.  In Three Rivers, Lord Millett stated that a plaintiff who alleges dishonesty must plead the facts, matters and circumstances relied on to show that the defendant was dishonest and not merely negligent, and that facts, matters and circumstances which are consistent with negligence do not do so. The defendant is entitled to know the case he has to meet. But since dishonesty is usually a matter of inference from primary facts, this involves knowing not only that he is alleged to have acted dishonestly, but also the primary facts which will be relied on at trial to justify the inference. It is not open to the court to infer dishonesty from facts which have not been pleaded or from facts which have been pleaded that are consistent with honesty. There must be some fact which tilts the balance and justifies an inference of dishonesty and this fact must be both pleaded and proved.

The Plaintiffs’ appeal

25.  The Plaintiffs’ appeal which is a rehearing by this Court concerns certain amendments the Master disallowed. They fall into the 3 categories considered below.

(1) “Fraud/Deceit or Conspiracy to Defraud and Injure the Economic Interests of P1 and/or P2 by Unlawful Means”: §§48K-48R

26.  The Plaintiffs submitted that when the facts pleaded in the proposed amendment concerning conspiracy by unlawful means are compared to those in the old plea (§§ 49-59), there are no material facts that are new. The cause of action is the same as before. The conspiracy claim was pleaded from inception. This is not a case of introducing fraud at a late stage.

27.  These proceedings were commenced several years ago. As the matter is ready to be set down for trial, upon reviewing the pleadings the Plaintiffs considered that the old version did not identify the overt acts and did not really articulate a common design which may make the pleadings vulnerable to attack at trial. The proposed amendments are essentially the outcome of that housekeeping exercise. As the amendments do not involve any new witness or any new plea, the Plaintiffs did not consider it necessary to file a new affirmation.

28.  The nub of the Plaintiffs’ case is summarised in their reply submissions as follows:

“1. D1-3 have three houses built by P2. D7 has HK $3.645 million transferred from P1 through D5. P1 has nothing. P2 is owed construction fees. The proposed amendments simply allow [the Plaintiffs] to plead that this result was no accident but a product of a conspiracy.”

29.  D4 and D6 as well as the remaining Defendants objected to the proposed amendments. The key objections are considered under the subheadings below.

(a) Acts consistent with honesty

30.  A key objection raised is that the pleas of overt acts are consistent with honesty. They rely on the authorities stated in §23 above. They contend that unless the pleas unambiguously point to dishonesty, they should not be allowed.

31.  The Plaintiffs submitted that that is the wrong test and a conspiratorial agreement can only be inferred, citing Kuwait Oil Tanker Co SAK v Al Bader [2000] 2 All ER (Comm) 271. At §111, the English Court of Appeal adopted the observations of O’Connor LJ in R v Siracusa (1990) 90 Cr App R 340 at 349:

“… the origins of all conspiracies are concealed and it is usually quite impossible to establish when or where the initial agreement was made or when or where other conspirators were recruited. The very existence of the agreement can only be inferred …”

32.  Hong Kong authorities are to similar effect: see Dingway Investment Ltd v China City Construction & Development Co (Hong Kong) Ltd [2022] 4 HKLRD 67 at §103[7] and Sunni International Limited (in liquidation) v Kao Wai Ho Francis [2023] HKCFI 2882 at §64[8].

33.  The Plaintiffs submit that if the overt acts[9] give rise to the inference of a conspiratorial agreement, it matters not that the fact that each act considered in isolation is consistent with honesty. Against the overt acts, one must juxtapose the defence of the Defendants.

34.  D1-D3 and D7 filed a composite defence to the effect that they never authorised D5 or D6 to do anything. If so, one wonders why as landowners they provided ownership documents[10] to D5 and D6. It suggests a level of involvement which can only be determined at trial.

35.  D5 and D6 are not landowners but contracted with the Plaintiffs as co-investors[11]. They provided the Plaintiffs with the ownership documents. They do not deny receipt of the payments made by P1. Were they acting for themselves or for someone else?

36.  D6 dealt with communications with the Plaintiffs. After the Plaintiffs discovered that the POA for Lot 3 had not been assigned to D5 as required by the Lot 3 Investors Agreement, D6 cut off all communication channels with the Plaintiffs. Why would D6 have done that?

37.  When viewed against the backdrop of the overt acts, the Defendants have not put forward a positive case. D1-D3 have not provided any credible explanation for allowing construction on their land and D5 and D6 have failed to explain why they were in possession of the ownership documents and their purpose in transmitting them to P1.

(b) “Irreconcilable contradiction” between §48N(a) and §48N(i)

38. This objection arises from the fact that in §48N(a), the Plaintiffs state that D5 and D6 lacked authority but in §48N (i), they state that D1-D3 authorised D5 and D6 to evict the Plaintiffs from the construction site.

39.  The 2 subparagraphs refer to events occurring at different times. The Plaintiffs submitted that subparagraph (a) refers to the representation of authority in early 2019 (D5 and D6’s inducement of P1) while subparagraph (i) concerns D1-D3’s authorisation of eviction and replacement by a new contractor in late 2020 and concerns D1-D3’s adoption of the fruits of the inducement.

40.  The Plaintiffs cited Allied Weli Development Ltd (in Liquidation) v Chuang Yue-Chien Eugene [2025] HKCFI 4299 at §177 in support of the proposition that the conspiratorial agreement in the context of a claim for conspiracy to injure by unlawful means does not have to be an expressed agreement; a party may join a conspiracy after its inception by adopting what has been done.

41.  I accept the submission that the pleas when viewed in their proper timeframe are not contradictory. The Defendants’ criticism is misplaced.

(c) Miscellaneous objections

42.  D4 and D6 made various objections to the pleadings:

(i) Scattergun formulation: “Dings/D1-3, Sister/D5, Wong/D6 and Chan/D7 (or any two or more together)[12]”;

(ii) “[The Plaintiffs] do not plead the precise date and terms of the conspiratorial agreement[13]”;

(iii) “No actionable underlying fraud against P2 because no overt act pleaded against P2[14]”;

(iv) “Overt acts defect[15]”; and

(v) “The losses sound exclusively in contract, not conspiracy[16]”.

43.  As regards (i), the formulation adopted is standard form: see Bullen & Leake & Jacob’s Precedents of Pleadings (19^th Ed.) at§§59-P1 8) and 59-P2(3), Total Lubricants Hong Kong Limited v Christophe de la Cropte de Chanterac, unrep., HCA 1694/2008, 7 February 2012 at §§8-9 which set out the pleading requirements for conspiracy.

44.  D4 and D6 sought to distinguish Total Lubricants which involved an unlawful means conspiracy via breach of confidence on the basis that the present case involved allegations of fraud which required the strictest pleading requirements.

45.  I do not consider the type of unlawful means deployed changes the pleading requirements so long as the pleadings meet the ADS test.

46.  As regards (ii), the fact that the Plaintiffs do not plead the precise date and terms of the conspiratorial agreement is not objectionable so long as the court is satisfied that sufficient primary facts have been pleaded to support the inference of a conspiratorial agreement: see the authorities cited in §§ 31-32 above.

47.  Turning to (iii) above, one of the pleaded objects of the conspiracy was to induce “P2 to perform substantial construction works on the [3] Lots without full payment or with no intention of full payment”: see §48M(b).

48.  The pleadings also contain overt acts directed at or cause injury to P2 pursuant to the conspiracy, namely,

• §48N(e): D5 and D6 and/or D7 engaged P2 to build on the 3 Lots “knowing or intending that Sky Unique/P2 would not be fully paid for its work”.

• §48N(g): the Defendants parties acting of “dishonestly ceased making payments” to P2 for construction works done on the 3 Lots; and

• §48N(i): D1-D3 “dishonestly authorised” D5, D6 and/or D7 to evict the Plaintiffs and find a replacement contractor.

49.  As regards (iv), Annex B to the Plaintiffs’ skeleton identify the overt acts by reference to columns headed “Evidence” and “RRASOC”. The Defendants object to the entries under the “Evidence” column, submitting that “one does not look at the witness statement to cure a defective pleading” and “the plea should be driving the evidence and not the other way round”.

50.  Even if one were to ignore the entries under the “Evidence” column, the references under RRASOC identify the overt acts that result in the situation summarised in §28 above.

51.  In the absence of any positive case from the Defendants, it is plain and obvious from the primary facts what the Plaintiffs’ case is: conspiracy to injure by unlawful means on conspiracy. That is the case that the Defendants must meet.

52.  D4 and D6 submitted[17] that conspiracy requires positive overt acts but the amendments (§48N(d)-(h)) largely rely on “negative acts”.

53.  In the Dingway case, Golden Gate International Investment Co Ltd (“GG”) renewed its application for leave to appeal against the order of Anthony Chan J (as he then was) dated 29 July 2022 who, while accepting that Dingway’s pleading suffered from some deficiencies, held it was curable by way of further and better particulars. The sole issue for determination of the strike out application was whether Dingway had properly pleaded GG’s knowledge of both the conspiracy and dishonest assistance.

54.  The Court of Appeal[18] refused leave and held as follows:

“35. … In a situation such as this, where fraud and conspiracy are often by their nature clandestine, the averments of fraud and conspiracy cannot be ‘too precise’ …

36. As for [GG’s] argument there is no pleaded basis for the court to infer dishonesty on its part, the judge was satisfied that the receipt of a large part of the Sale Proceeds (‘the receipt by [GG] of a very substantial portion of the Sale Proceeds can speak volumes’) and his rejection of the Loan as alleged are sufficient to maintain the claims against [GG] in that he accepted that Dingway ‘has a good arguable case on the facts’.

37. There is no legal prohibition from relying on inferences in the context of conspiracies and frauds, so long as those inferences are drawn from primary facts that have been proved up to the requisite standard.”

55.  In my view, those observations are equally applicable to the present case.

56.  As regards (v), the Plaintiffs’ case is not simply that they were not paid the full contractual amount, the entire contractual framework was part of a scheme to defraud. It follows that the damage is the loss caused by being induced by the fraud: P1 lost her investment and P2 the value of substantial construction works.

(2)(a) P1’s claim against D6 for fraudulent and/or negligent misrepresentation: §§59G-59P

57.  The Plaintiffs’ case for fraudulent misrepresentation against D6 is grounded on D6’s representations to P1 that[19] (i) she had authority to act for D1-D3 and D7; (ii) she was the agent looking for investors in the Joint Venture and to act as middle persons; (iii) after P1 had invested, the registered owner would transfer his ownership to P1 and (iv) such representations were false, made recklessly and without honest belief in its truth.

58.  D4 and D6 submitted that

(i) the proposed amendments introduce a new claim in fraud against D6 under the rubric “Fraudulent and/or Negligent Misrepresentation”;

(ii) such a plea is self-evidently not an unequivocal allegation of fraud: pleadings containing expressions such as “fraudulent or reckless or negligent misrepresentation” constitute rolled up pleas of fraud and negligence that are bad and must be struck out, citing Song Congying at §48 and Terkild Johan Terkilsen v Barber Asia Ltd, HCA 1963/2003, 8 March 2007 at §§14 and 17. D6 must know the case she has to meet, whether it is a claim of deliberate deceit or mere carelessness.

59.  As regards (i), as earlier noted,[20] the fraud claim is not new and reflects the old plea (§§49-59). There is no presumptive prohibition on fraud amendments: see Shiamas Ltd v Concord Way Ltd [2019] HKCFI 1418 at §§ 29-32; Song Congying at §37 and the CA’s judgment in Dingway at §33[21].

60.  As regards (ii), Mr Kwan pointed out that the alternatives are not “rolled up” but separately delineated: §§59J-59K concern fraud, §§ 59L-59M concern negligence and §59N concerns section 3 of the Misrepresentation Ordinance (“MO”). What D6 must deal with under each head is clear.

61.  The first is the Derry v Peek type of fraudulent representation. If the trial judge to find that there is no conspiratorial agreement, the alternative is to pursue the misrepresentation claim based on representation, falsity, knowledge of falsity, deceit, reliance and loss. If D5 and D6 knew that their representations were false, that would be a case of fraudulent misrepresentation. If they were careless, they may be negligent in making that representation. The statutory misrepresentation claim shifts the burden of proof. If the trial judge were to find that there is a false representation made, then it would be for the defendant to explain grounds for believing in the truth of the statement made.

62.  D6’s contention is that section 3 of the MO is inapplicable because she is not a party to the Investment Agreement pleaded in RRASOC §19. That is to adopt a blinkered approach. It is clear from reading RRASOC §§16, 18-19, 23 and 29 that it has been the Plaintiffs’ case from inception that D6 was a contracting party. It is a matter for trial whether she contracted as principal or agent. It is not a basis for disallowing the claim made under section 3 of the MO.

63.  The Plaintiffs submitted and I accept that it is necessary to repeat the 3 types of negligence because the measure of loss differs. For breach of warranty, it would be what it would have meant in real terms if D5 and D6 had the authority to make the representations and carry out the transactions. The measure of loss is different under misrepresentation: it would be to recover what had been paid for the investment - the reliance-loss measure.

64.  The matter is not academic. If, for example, there is any encumbrance of the land because of government regulations, what the Plaintiffs would be able to recover for a breach of warranty claim may be of less value than reliance loss.

(2)(b) P1’s claim against D5 for fraudulent and/or negligent misrepresentation: §§59W-59A-F

65.  D5 (who was previously represented) appeared in person. She submitted that if the Plaintiffs are allowed to make such a large-scale amendment, it would not be fair as she has no legal representation. However, that is not a reason for refusing amendments if otherwise justifiable.

66.  §§59W-59AF contain mirror claims against D5 and what is set out above relating to the claim against D6 applies, mutatis mutandis, to the claim against D5.

(3) The constructive trust claim against D1-D3: §§90-91

67.  This is P2’s claim against D1-D3. The basis for P2’s claim is pleaded in §90[22]. It encompasses “unjust enrichment and/or D1-D3’s knowledge of the circumstances surrounding the fraudulent procurement of the Construction Agreements and P2’s mistaken performance”. P2 claims that they had knowledge of the fraudulent scheme.

(a) Unjust enrichment

68.  Underhill & Hayton, Law of Trusts and Trustees (20^th Ed.) states that constructive trusts may be imposed in response to the unjust enrichment of the defendant at the claimant’s expense. However, the claimant must demonstrate that the case falls within a recognised category of case where restitution on the ground of unjust enrichment has previously been awarded, or else that restitution could be justified by a principled extension from such a case. English and Australian courts have held that in some cases constructive trusts respond to unjust enrichment but have not subscribed to the view that all do[23]: at §§34.1-34.3.

69.  In my view, it would be premature to rule out constructive trust as a remedy at this stage because in the event of the unjust enrichment claim being established at trial, then, depending on the facts found by the trial judge, the Court may consider it appropriate to impose a constructive trust. It would be wrong to pre-empt that remedy. There is no valid basis for fettering the Court’s discretion in that regard.

(b) D1-D3’s knowledge and P2’s mistaken belief

70.  In Ramsden v Dyson (1866) LR 1 HL 129 Lord Carnworth held (at 140-141) that:

“If a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a Court of equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own.”

71.  The relevance of Ramsden in the present context is controversial. P2 submitted that where a landowner acquiesces in the conferral of non-monetary benefits on his land knowing or having encouraged the claimant’s expectation of an interest, and then retains the benefit without compensation, equity may impose a constructive trust or lien over the improved property. On its pleaded case, the appropriate relief could result in the imposition of a constructive trust.

72.  D1-D3 submitted that the present case is fundamentally different: Ramsden concerned a situation where a person is mistaken as to ownership of a piece of land on which he builds or improves on. Here, P2 carried out the works under the mistake of fact that such works were done pursuant to the Investment Agreement. The plea is that P2 expected to be paid under the contract to which D1-D3 are not parties.

73.  Further, the Construction Agreements pursuant to which P2 completed certain works were between P2 and the “New Investors” who are the counterparties responsible for making payments under the Construction Agreements. The New Investors are defined (at §21) to be D4, Mr Hui, Mr Pang and the Lot 3 Investors. Lot 3 Investors, in turn, are defined (at §19 (d)) to be P1, D5 and D6. As D1-D3 are not ‘New Investors’, they cannot be responsible for any unpaid portion of monies due under the Construction Agreements. Accordingly, the persons unjustly enriched are the counterparties to the Construction Agreement and not D1-D3.

74.  That analysis ignores the claim in conspiracy against, inter alia, D1-D3. If that claim is made out at trial, whether the Court would consider it appropriate to impose a constructive trust would depend on the extent of D1-D3’s involvement.

Disposition

75.  I allow the Plaintiffs’ appeal and set aside the Order to the extent that it relates to RRASOC §§48K-48R (the Plaintiffs’ claim in unlawful means conspiracy to defraud by the Defendants); §§59G-59P and §§ 59W-59AF (the Plaintiffs’ claim in fraudulent and/or negligent misrepresentation against D6 and D5); and §§90-91 (P2’s claim in constructive trust against D1-D3).

76.  I direct that an agreed draft order be submitted for approval within 7 days of this Decision.

77.  I make an order nisi that (1) costs of and occasioned by the amendment be to the Defendants in any event to be taxed if not agreed, and (2) costs of this hearing be paid by the Defendants to the Plaintiffs, such costs to be summarily assessed and payable forthwith.

78.  The Plaintiffs do lodge their statement of costs within 7 days of this Decision, the Defendants their respective lists of objections (limited to 2 pages) within 14 days thereafter and the Plaintiffs their reply (if any) within 7 days thereafter.