Read the full judgment text of CACV 000225/2002 on BabelCite. This Court of Appeal judgment was delivered on 17 January 2003 before Rogers VP, Le Pichon JA.
Civil procedure – amendment of pleadings – addition of cause of action accruing after issue of writ – rule in Eshelby v Federated European Bank Ltd – whether absolute rule or subject to discretion – three-year lease of office premises in Dah Sing Financial Centre, Wanchai, dated 11 October 1999 – defendant ceased paying rent and purported to terminate lease unilaterally in January 2001 – plaintiff accepted repudiation – first action (HCA 4145/2001) commenced 19 January 2001 – summary judgment obtained for rent and charges – application to amend first action to add wrongful repudiation claim refused by Master Au-Yeung – second action commenced July 2001 seeking damages for wrongful repudiation – Master Wong dismissed second action as abuse of process – Ma J dismissed appeal – whether second action was abuse of process – whether Eshelby rule absolute – whether Master Au-Yeung's refusal of amendment was binding and correct – whether wider res judicata principle (Henderson v Henderson / Yat Tung Investment v Dao Heng Bank) applied – Court of Appeal held that the Eshelby rule has not disappeared but English courts have adopted more flexible approach permitting amendment to introduce subsequent events clarifying existing cause of action – no authority permits amendment over opposition introducing wholly new cause of action not existing at date of writ – Master Au-Yeung's refusal was correct and binding – wider res judicata principle inapplicable because the repudiation cause of action could not be raised in the first action – appeal dismissed with costs and $100,000 immediate payment on account under Order 69 rule 9(2)(a).
Legal issues: Whether the rule against adding a cause of action by amendment that accrued after the date of issue of the writ is absolute · Whether the second action was an abuse of process under the wider res judicata principle · Whether Master Au-Yeung's refusal of the amendment to the first action bound the parties and justified striking out the second action
Outcome: Appeal dismissed with costs; immediate payment on account of $100,000 ordered under Order 69 rule 9(2)(a).
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