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HCA 2507/2003
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 2507 OF 2003
______________________
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Between
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EAA SECURITIES LIMITED |
Plaintiff |
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and
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FATTYDAD ALICE PUI YAN
(The administratrix of the Estate of FATTYDAD HENRY, deceased) |
Defendant
(2nd Defendant in the consolidated action) |
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SO TAI FAI |
Third Party
(1st Defendant in the consolidated action) |
| ______________________ |
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HCA 2520/2009 |
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IN THE HIGH COURT OF THE |
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HONG KONG SPECIAL ADMINISTRATIVE REGION |
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COURT OF FIRST INSTANCE |
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ACTION NO 2520 OF 2009 |
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| ______________________ |
| And Between |
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EAA SECURITIES LIMITED |
Plaintiff |
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and
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SO TAI FAI |
1st Defendant
(1st Defendant in the consolidated action) |
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FATTYDAD ALICE PUI YAN
(The administratrix of the Estate of FATTYDAD HENRY, deceased) |
2nd Defendant
(2nd Defendant in the consolidated action) |
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(Consolidated by Order of Registrar Lung dated 25 May 2011) |
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| Before: Hon Poon J in Court |
| Date of Hearing: 11 September 2013 |
| Date of Ruling: 11 September 2013 |
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R U L I N G
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1. This is no doubt a very late application by the 2nd defendant to better formulate her counter-claim, in particular, the cause of action upon which the counter-claim is based. The application only arose as a result of the exchange between the Bench and Mr Wong, counsel for the 2nd defendant, yesterday, when there was a discussion about what exactly was the cause of action that the 2nd defendant was relying on.
2. By way of the proposed amendments, the 2nd defendant is now framing the cause of action purely on contract.
3. In connection with the relief in prayer (A) for delivery up of the shares in question, or identical shares, and (C), all the proprietary rights deriving from those shares between 6 September and the present, it is based on an implied term stated in paragraph 49 of the proposed amendment. I shall not repeat the pleadings but it is clear that a request by the deceased or his nominee is a prerequisite for invoking that particular implied term to demand the plaintiff to deliver up the shares in question.
4. Mr Wong for the 2nd defendant has fairly conceded that the demand is only made by way of these proposed amendments now placed before the court; in other words, at the time when the complaint was filed, no proper cause of action based on implied term was constituted.
5. The shares were sold in the months of August, September and October 2000. If I were to allow the amendment today, I will be allowing a claim which is clearly time barred. I do not think I should exercise my discretion in that manner.
6. The proposed amendments relating to or in support of prayers (A) and (C) are not allowed. Prayers (A) and (C) themselves are struck out. Other amendments are allowed.
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(J Poon)
Judge of the Court of First Instance
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High Court |
Mr Dennis W H Kwok, instructed by Woo, Kwan, Lee & Lo, for the plaintiff
1st defendant, appeared in person
Mr Brian C W Wong, instructed by Keith Lam Lau & Chan, for the 2nd defendant
Please refer to CACV205/2013 for the relevant appeal(s) to the Court of Appeal. |