Read the full judgment text of CAMP 136/2018 on BabelCite. This Court of Appeal judgment was delivered on 11 October 2018 before Kwan JA, Barma JA.
Civil procedure – pleadings – rule against departure – Order 18 rule 10(1) of the Rules of the High Court – trust case – family trust established for estate duty planning to hold the controlling shareholding in Great Eagle Holdings Limited – plaintiff in her personal capacity and as sole executrix of her late husband's estate alleged trustee had breached its duties by failing to act on her 2016 Letters to purchase further shares to maintain the Trust's controlling shareholding in the face of KS's increasing shareholding – whether impugned parts of the reply (concept of "dominant and/or de facto controlling shareholding" and the "aggregate shareholding" of the Trust and the Lo family members) constituted allegations of fact or new grounds of claim inconsistent with the statement of claim – court applies Herbert v Vaughan [1972] 1 WLR 1128 that "inconsistent" means "new" or "different", not merely "mutually exclusive" – pleading of a different factual basis for an existing cause of action can amount to a "new ground of claim" – adding "dominant and/or de facto" to "controlling shareholding" introduced a new or different concept constituting a departure; the remaining averment could stand with those offending words struck out – pleading of aggregate shareholding of the Trust and the Lo family members and the alleged alignment of their interests prior to the fourth quarter of 2015 and absence of alignment thereafter was a clear new ground of claim inconsistent with the case pleaded in the statement of claim, which focused on preservation of a controlling shareholding "within the Trust" – appeal largely dismissed with limited modification – case management – amendment of pleadings – whether trial judge erred in allowing the plaintiff's late amendments to the statement of claim and reply, and consequential amendments to the defence, on the first day of trial – court applies the high threshold for appellate interference with a case management discretion (Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887) and the principles on amendment of pleadings from Igal Dafni v CMA CGM SA [2013] 2 HKLRD 73 – trial judge had found that the amendments concerned matters already in issue and covered in the evidence, that the plea of "gross negligence" was a legal conclusion and not a new factual averment, and gave consequential directions to manage prejudice – no duty to address every submission or authority cited (English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409) – leave to appeal refused – costs ordered accordingly with certificate for three counsel in each set of applications.
Legal issues: Application of rule against departure to impugned reply averments · Interference with trial judge's case management discretion to allow late amendments
Outcome: For CAMP 135 and 136/2018, leave to appeal was granted to the plaintiff and the appeal was largely dismissed, with the modification that §56AA(3)(i) of the reply was permitted to remain with the words "dominant and/or de facto" struck out. For CAMP 139 and 140/2018, leave to appeal was refused to the defendant.
Cited by 21 cases · Cites 4 cases