Law Lai Ming v. Tsang Chuen Wah and Another

Case No.CACV 160/1990

Court

Court of Appeal

Date04 Jan 1991

Judge—

Case Document

100%

CACV000160/1990

IN THE COURT OF APPEAL

CIVIL APPEAL NO. 160 OF 1990

(On Appeal from District Court Action No. 273 of 1990)

__________

BETWEEN

	LAW LAI MING	Plaintiff
	AND
	TSANG CHUEN WAH	1st Defendant
	WONG SHU KAM	2nd Defendant
		(Appellant)

___________

Coram: The Hon. Fuad, V-P, Penlington, J.A. & Sears, J.

Dates of Hearing: 4 January 1991

Date of Delivery of Judgment: 4 January 1991

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JUDGMENT

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Sears, J.

1. This is an appeal from an order of Deputy Judge White, in the District Court, given on August 14th 1990, and reviewed by him on August 24th, whereby he dismissed an application by the 2nd Defendant to strike out the Amended Particulars of Claim. Leave to appeal was given by Penlington, J.A. on October 12th.

2. The claim was by the Plaintiff against the lst Defendant, her mother-in-law and the 2nd Defendant, her husband for monies advanced to the 1st Defendant at, it was asserted, his request. Apparently, the case had started against the 1st Defendant, when it was adjourned and the 2nd Defendant was joined. The claim is in very general terms and alleges that the 2nd Defendant had warranted that he acted for his mother.

3. I have considered the points put forward by Mr. Louis Chan and in my judgment, the claim as presently formulated against the 2nd Defendant is defective and discloses no reasonable cause of action. It would be wrong, however, to deprive the Plaintiff of the opportunity of pursuing the claim against the 2nd Defendant if one can be properly framed, and therefore, the court should strike out the Amended Particulars of Claim as against the 2nd Defendant, but give leave to the Plaintiff to formulate a new claim, if so advised, within 21 days. The 2nd Defendant is, of course, at liberty, if he considers that the subsequent pleading is similarly defective to make another application before the District Court judge. In my judgment, therefore, this appeal should be allowed to that extent.

Fuad, V-P

4. I agree with the order proposed.

Penlington, J.A.

5. I also agree with the order proposed. The only other matter which I might mention, useful though it might not be, is that we have been referred to the case of Oxenham v. Smythe, decided in 1861 regarding a hotel at Richmond Green called 'The Cricketers', I am happy to say from my own knowledge, that although Mr. Oxenham may be long since gone, 'The Cricketers' still remains.

(K.T. Fuad)	(R.R. Penlington)	(R.A.W. Sears)
Vice-President	Justice of Appeal	Judge of the High court

Representation:

Mr. Louis Chan instructed by M/s Chui & Lau for the Appellant/2nd Defendant

Mr. Kenneth Chan instructed by M/s T.C. Lau & Co. for the Respondent/Plaintiff