Read the full judgment text of HCCT 47/2011 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 28 February 2012 before Hon Au J in Chambers.
Procedure — Striking out for want of prosecution — Inordinate and inexcusable delay — Requirement of abuse of process and prejudice to justify striking out — Principles restated by Ma CJ in FACV 3/2011 applied — Plaintiff failed to establish substantial prejudice caused principally by defendant’s delay — Defendant’s counterclaim not struck out. Procedure — Amendment of pleadings — O 20 r 5 discretionary, amendments generally allowed unless causing non-compensable prejudice — New indemnity cause of action arguably not time barred as cause of action accrued when loss ascertained in 2011 settlement — New factual breach allegations disallowed due to serious prejudice from faded memories and loss of witnesses — Additional labour and rectifying costs allowed as continuing or originally pleaded claims — Costs orders nisi made. Factual background summarized: Defendant subcontracted automation and control system to plaintiff for car park system; system failed; repudiation and counterclaim; prolonged delay in prosecution; employer claims and settlement; defendant amendments to pleadings. Outcomes: Striking out dismissed; certain amendments allowed; other amendments rejected; redrafting ordered; costs reserved.
Legal issues: Striking out for want of prosecution · Amendments to Defence and Counterclaim
Outcome: The Striking Out Summons is dismissed; defendant’s counterclaim is not struck out for want of prosecution. The Amendments Summons is partly allowed and partly disallowed: amendments based on indemnity cause of action and additional labour and rectifying costs allowed; new factual allegations of breach disallowed.
Cited by 4 cases · Cites 1 case