Thyssen Hunnebeck Gmbh v. E Man-sanfield Jv Construction Co. Ltd.
Read the full judgment text of HCCT40/2002 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 3 December 2002 before Hon Burrell J in Chambers.
Construction and arbitration proceedings — Application to amend Statement of Claim to add a second plaintiff — Defendant denies contract with first plaintiff but admits contract with second plaintiff — Plaintiff argues second plaintiff acted as agent or principal — Defendant contends that only one cause of action exists and plaintiffs must elect — Court applies Order 15 rule 6 of the Rules of the High Court; no cause should be defeated by misjoinder or nonjoinder — Joinder appropriate to enable full adjudication — Agency/principal issues not determined at amendment stage — Amendment allowed — Costs on amendments to defendant, costs of hearing to plaintiff.
Legal issues: Joinder of a second plaintiff and amendment of Statement of Claim
Outcome: Amendment to add the second plaintiff allowed; costs of amendments to defendant; costs of hearing to plaintiff.
|
HCCT000040/2002 HCCT40/2002 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTRUCTION AND ARBITRATION PROCEEDINGS -------------------------
---------------------- Coram: Hon Burrell J in Chambers Date of Hearing: 29 November 2002 Date of Decision: 3 December 2002 ----------------------- D E C I S I O N ----------------------- 1.There are two summons before the court. Firstly a summons for directions upon which the defendant seeks an adjournment. Mr Terence Wong for the plaintiff does not consent to the adjournment but concedes it is not ready to proceed. I therefore adjourn it with costs in the cause. 2.The second summons is an application by the plaintiff to amend the Statement of Claim. Some of the proposed amendments are not challenged. One, however, is contested, namely the plaintiff's application to add a 2nd plaintiff and the consequential amendments which flow from that addition. 3.The issue has arisen because in its defence the defendant has denied that it made a contract with the original plaintiff but admits that it made a contract with the proposed 2nd plaintiff. The plaintiff has therefore take out this summons and by affirmation evidence in support states :
4.The defendant's opposition is based on the submission that there is only one cause of action in this case and these two plaintiffs cannot be allowed to share it. Mr Hoy for the defendant argues that, at least, one of the plaintiffs must lose. They cannot both win. The plaintiff must be put to its election as to which plaintiff is going to pursue the single cause of action. The proposed amendment which flows from the above affirmation evidence, which Mr Hoy contends is "a hopeless muddle", is in the following terms :
Further, the proposed amendment to the Reply and Defence to Counterclaim states :
5.Mr Hoy has advanced his argument by reference to authorities on strike-out applications. His point is that if these two plaintiffs were in fact on the pleadings an application to strike out one of them would succeed. Therefore the plaintiff should be compelled to make an election now. He acknowledges that if the plaintiffs are forced to elect and, at trial, they lose because the wrong plaintiff has sued, all that will happen is that the other plaintiff will commence a fresh action. 6.Mr Wong, on the other hand, points out that this is not an application to strike out, it is an application to join a party. Even if it were hypothetically assumed to be a strike out situation, the defendant does not say which plaintiff should be struck out. He emphasizes that the proposed amendment merely enables the plaintiffs to argue alternative claims. No authority has been cited which suggests that a plaintiff must be compelled to elect. Rather he points to a passage in Long v. Crossley (1879) 13 CLD where Fry J at p.391 said :
7.This was said 123 years ago but the principle remains good when considering an application for joinder such as this. I agree with Mr Wong that it would be premature to decide the issue of agency and principal on this application. The proposed 2nd plaintiff is either an agent or he is not. The material necessary to decide the issue is not presently before the court. It is agreed that the proposed 2nd plaintiff signed the contract. However, the defendant says he dealt with the 1st plaintiff as a disclosed principal. The position is by no means clear. 8.In short, I think that the above issues are not those which should determine this application at this time. Rather, I think the principles on amendments by joinder should not be sidelined. They are uncomplicated. I have decided that I should not be deflected from applying them. They are on the Rules of the High Court in the following terms :
There are exceptions to this rule but they do not apply in this case. 9.I am therefore persuaded that the amendments should be allowed. What effect this will have on the future conduct of this case is impossible to predict. The defendant may apply to strike out, the plaintiffs may reconsider the matter and choose to substitute the 2nd plaintiff as the sole plaintiff. These are matters for future consideration by the parties, not for present determination by the court. 10.The costs consequential on the making of the amendments themselves will be to the defendant. The costs of the hearing will be to the plaintiff.
Representation: Mr Terence Wong, instructed by Messrs Lovells, for the Plaintiff Mr Barry Hoy, instructed by Messrs Robertsons, for the Defendant |