Yau Ngai and Others v. Yau Tak and Others
Read the full judgment text of HCA 1309/2007 on BabelCite. This High Court CFI judgment was delivered on 9 January 2009 before Deputy High Court Judge L. Chan.
Civil procedure – joinder of defendants – service out of jurisdiction – concurrent writ – Rules of the High Court, Order 6, Rule 6(1) and 8(1) – whether concurrent writ valid when original writ expired before defendant added by amendment – Order 11, Rule 4 – sufficiency of affidavits in support of application for service out of jurisdiction – Order 11, Rule 1 – whether claims fall within rule justifying service out of jurisdiction – agreements for restructuring of jewellery companies by transfer of shares and assets – corporate defendants not parties to agreements – whether corporate defendants are proper parties. First issue: whether concurrent writ issued on 28 October 2008 valid when original writ issued 21 June 2007 had expired – held, yes, because for a defendant added by amendment, the rule must be construed as requiring service within the appropriate period from the date of the amendment; defendants' construction would require extension of validity and is unreasonable. Second issue: whether plaintiffs complied with Order 11, Rule 4 in applying for service out of jurisdiction – held, yes, applying Inverness Corporation v Magic Dreams Cosmetica Infantil, the materials in the existing affidavits and the relief claimed in the draft re-amended writ were sufficient; the rule does not require ritual incantation of its wording. Third issue: whether claims against the corporate defendants fall within Order 11, Rule 1 – held, no; the corporate defendants are not parties to the agreements and have no cause of action against them, they are merely companies whose ownership is subject to the agreements and are not proper parties. Outcome: application of the 11th, 13th, 14th and 24th to 30th corporate defendants allowed with costs against the 1st and 2nd plaintiffs; application of the 31st and 34th individual defendants dismissed with costs to the 1st and 2nd plaintiffs; hearing on 13 January 2009 vacated.
Legal issues: Validity of concurrent writ issued after original writ expired · Sufficiency of affidavits in support of service out of jurisdiction · Whether claims fall within Order 11, Rule 1 for corporate defendants
Outcome: The application of the 11th, 13th, 14th and 24th to 30th corporate defendants to set aside the joinder and service out of jurisdiction orders was allowed. The application of the 31st and 34th individual defendants was dismissed.
Cited by 3 cases · Cites 2 cases
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HCA 1309/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 1309 OF 2007 ----------------------
---------------------- Before: Deputy High Court Judge L. Chan in Chambers Date of Hearing: 9 January 2009 Date of Decision: 9 January 2009 ------------------------ D E C I S I O N ---------------------- 1.On 15 October 2008, I ordered the joinder of various defendants to this action and further ordered the issue and service of concurrent writs on those of them which are residents outside this jurisdiction. The 11th, 13th, 14th, 24th, 25th, 26th, 27th, 28th, 29th, 30th, 31st and 34th defendants have applied to set aside those orders. The 11th, 13th, 14th and 24th to 30th defendants are corporate defendants and the 31st and 34th defendants are individuals. 2.This application was supposed to be heard at 9.30 am on 13 January 2009. It has now been brought forward to today upon the plaintiff’s application which is not being opposed by these defendants. The parties agree that this matter can be disposed of today. 3.The defendants have raised three grounds in the application. First, the validity of the original writ had expired as at 28 October 2008 when the concurrent writ was issued. Hence, the concurrent writ was issued invalidly. Counsel acknowledges that the first ground is not his best ground. Second, the plaintiffs had not filed any affidavit in support of the application for service out of jurisdiction as required by Order 11, Rule 4 of the Rules of the High Court. Third, the plaintiffs’ claim in this action as against these defendants do not fall within Order 11, Rule 1. This last ground is only relevant to the corporate defendants and not the 31st and 34th defendants. 4.For the first ground, Order 6, Rule 6(1) and 8(1) of the Rules of the High Court provide that:
5.The original writ was issued on 21 June 2007. The defendants argue that when the concurrent writ was issued on 28 October 2008, the original writ had already expired. They further refer to the form of the writ which states:
6.Leading counsel for the plaintiffs referred to paragraph 6/8/2 of the Hong Kong Civil Procedure 2009 and submitted that the rule cannot apply without adjustment in respect of a defendant who is not named in the writ as originally issued but who is added by way of amendment. In respect of such a defendant, the rule must be construed as requiring service on that defendant within the appropriate period from the date of the amendment by which he is added. 7.Counsel further referred to Jones v Jones [1970] 2 QB 576 and Payabi v Armstel Shipping [1992] QB 907. Counsel also pointed out that the defendants’ construction of the rule would require extension of the validity of the writ when a defendant is added after 12 months from the issuance of the writ, and that is unreasonable. 8.I think the plaintiffs’ construction is reasonable and correct. I do not accept this ground of the defendant. Nevertheless, even if the writ should have expired by 28 October 2008 when the concurrent writ was issued, I would have no hesitation to renew it as these defendants were only joined on 15 October 2008. 9.Regarding the second ground, there were in fact sufficient materials in the affidavits before me on 15 October 2008 to comply with Order 11, Rule 4. They are contained in paragraphs 7 and 8 of the third affirmation of Yau Siu-chan filed on 26 May 2008 and paragraphs 5 to 15 of the 10th affirmation of Yau Ngai filed on 3 October 2008. These affidavits were used mainly for the purpose of joinder. However, there was also reference to Order 11, Rule 1. Furthermore, relief 4E and 4F in the draft re-amended writ also clearly show the declarative and injunctive relief as sought against the 31st and 34th defendants. 10.The plaintiffs also rely on Inverness Corporation & Others v Magic Dreams Cosmetica Infantil, S. L. & Others [1997] HKLRD 1377. I need only refer to paragraphs 5 and 6 of the summary of the decision in the headnote:
11.In the premises, I reject the second ground of objection raised by the defendants. 12.Regarding the third ground, the corporate defendants seem to be on firm grounds. One of the claims in the action as made by the 1st and 2nd plaintiffs is for specific performance of certain agreements made between them and the 1st to 5th defendants. This is the relevant claim for the purpose of this application. These agreements relate to the ownership of certain companies and the restructuring of these companies. The restructuring was agreed to be by way of transfer of the shares of these companies and their assets to a newly company to be set up pursuant to the agreements. However, none of these corporate defendants are parties to these agreements and they are not bound by these agreements. They are merely companies the ownership of which are subject to the agreements. The 1st and 2nd plaintiffs are not seeking any order as against them. 13.As the corporate defendants are not parties to the agreements, the plaintiffs’ claims for transfer of their shares and for account and transfer of their assets are only directed to the individual defendants and not to these corporate defendants. In the words of their counsel, the 1st and 2nd plaintiffs in this action have no cause of action against them and does not claim any issue or relief against them. 14.In the premises, I cannot see any need whatsoever for them to be joined in this action. I do not think they are proper parties herein. I thus accept their application to set aside my previous orders and make an order in terms of their summons dated 5 December 2008 with costs to be paid to them by the 1st and 2nd plaintiffs. However, in relation to the application as made by the 31st and 34th defendants, that is dismissed with costs to the 1st and 2nd plaintiffs. I also vacate the hearing fixed for this summons at 9.30 am on 13 January 2009.
Mr John Yan, SC, instructed by Messrs Jimmie Wong & Henry Wai, for the 1st, 2nd, 3rd Plaintiffs Mr Sean H J Fang, instructed by Messrs Chan, Wong & Lam, for the 11th, 13th, 14th, 24th to 31st and 34th Defendants |
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