LAW LAI MING v. TSANG CHUEN WAH AND ANOTHER

IN THE COURT OF APPEAL

CIVIL APPEAL NO. 160 OF 1990

(On Appeal from District Court Action No. 273 of 1990)

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BETWEEN

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JUDGMENT

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Sears, J.

1. This is an appeal from an order of Deputy Judge White, in the District Court, given on August 14th 1990, and reviewed by him on August 24th, whereby he dismissed an application by the 2nd Defendant to strike out the Amended Particulars of Claim. Leave to appeal was given by Penlington, J.A. on October 12th.

2. The claim was by the Plaintiff against the lst Defendant, her mother-in-law and the 2nd Defendant, her husband for monies advanced to the 1st Defendant at, it was asserted, his request. Apparently, the case had started against the 1st Defendant, when it was adjourned and the 2nd Defendant was joined. The claim is in very general terms and alleges that the 2nd Defendant had warranted that he acted for his mother.

3. I have considered the points put forward by Mr. Louis Chan and in my judgment, the claim as presently formulated against the 2nd Defendant is defective and discloses no reasonable cause of action. It would be wrong, however, to deprive the Plaintiff of the opportunity of pursuing the claim against the 2nd Defendant if one can be properly framed, and therefore, the court should strike out the Amended Particulars of Claim as against the 2nd Defendant, but give leave to the Plaintiff to formulate a new claim, if so advised, within 21 days. The 2nd Defendant is, of course, at liberty, if he considers that the subsequent pleading is similarly defective to make another application before the District Court judge. In my judgment, therefore, this appeal should be allowed to that extent.

Fuad, V-P

4. I agree with the order proposed.

Penlington, J.A.

5. I also agree with the order proposed. The only other matter which I might mention, useful though it might not be, is that we have been referred to the case of Oxenham v. Smythe, decided in 1861 regarding a hotel at Richmond Green called 'The Cricketers', I am happy to say from my own knowledge, that although Mr. Oxenham may be long since gone, 'The Cricketers' still remains.