Read the full judgment text of HCA 1645/2013 on BabelCite. This Court of First Instance judgment was delivered on 21 January 2015 before Mimmie Chan J.
Civil procedure – abuse of process – Henderson v Henderson abuse – whether subsequent proceedings on matters which could and should have been raised in earlier proceedings should be struck out – Small House Agreement, Shareholders Agreement and Settlement Agreement relating to the development of small houses in Sha Lan Village, New Territories – constructive trust claim based on knowing receipt – claim of dishonest assistance against solicitor's clerk – implied term to develop the Properties – illegality – conspiracy and false representation – Companies Ordinance (Cap 32) s.186 – striking out pleadings disclosing no reasonable cause of action – joinder of additional plaintiff and defendant – whether change of lawyers or shift in legal advice excuses failure to raise matters in earlier proceedings – whether matters were within reasonable diligence to ascertain from land search records – whether final judgment of 2006 Action is binding – court exercises balance of interests between private litigants and public interest in finality of litigation – doctrine of res judicata in wider sense – Cheng Group had their day in court in 2006 Action – recorder found that subject matter of sale under Agreements was 27.54% of 66% shareholding in WHC, not the Properties – trust claim previously struck out as embarrassing – allegations of knowing receipt, dishonest assistance, illegality and conspiracy unparticularised – transfers of Properties registered at Land Office before 2006 trial – all claims in present proceedings amount to re-litigation of matters already determined or which could and should have been raised in 2006 Action – strike out of Statement of Claim, refusal of leave to amend, refusal to join Pegasus as plaintiff, refusal to join Polyline (In Liquidation) as defendant – order nisi for costs in favour of defendants including costs of Official Receiver.
Legal issues: Whether the present action is an abuse of process under Henderson v Henderson · Whether the claims disclose any reasonable cause of action · Whether to grant leave to join Pegasus View Investment Limited as 2nd plaintiff · Whether to grant leave to join Polyline Development Limited (In Liquidation) as a defendant
Outcome: Defendants' applications to strike out granted; plaintiff's applications to amend the Statement of Claim, to join Pegasus View Investment Limited as 2nd plaintiff, and to join Polyline Development Limited as a defendant, refused.
Cited by 1 case · Cites 3 cases