EAA SECURITIES LTD v. FATTYDAD ALICE PUI YAN, the Administratrix of the Estate of Fattydad Henry, Deceased

HCA 2507/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2507 OF 2003

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Between
	EAA SECURITIES LIMITED	Plaintiff
and
	FATTYDAD ALICE PUI YAN (The administratrix of the Estate of FATTYDAD HENRY, deceased)	Defendant (2nd Defendant in the consolidated action)
	SO TAI FAI	Third Party (1st Defendant in the consolidated action)
______________________
		HCA 2520/2009
	IN THE HIGH COURT OF THE
	HONG KONG SPECIAL ADMINISTRATIVE REGION
	COURT OF FIRST INSTANCE
	ACTION NO 2520 OF 2009
______________________
And Between
	EAA SECURITIES LIMITED	Plaintiff
and
	SO TAI FAI	1st Defendant (1st Defendant in the consolidated action)
	FATTYDAD ALICE PUI YAN (The administratrix of the Estate of FATTYDAD HENRY, deceased)	2nd Defendant (2nd Defendant in the consolidated action)
	(Consolidated by Order of Registrar Lung dated 25 May 2011)

Before: Hon Poon J in Court

Date of Hearing: 11 September 2013

Date of Ruling: 11 September 2013

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R U L I N G

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1.  This is no doubt a very late application by the 2nd defendant to better formulate her counter-claim, in particular, the cause of action upon which the counter-claim is based.  The application only arose as a result of the exchange between the Bench and Mr Wong, counsel for the 2nd defendant, yesterday, when there was a discussion about what exactly was the cause of action that the 2nd defendant was relying on.

2.  By way of the proposed amendments, the 2nd defendant is now framing the cause of action purely on contract.

3.  In connection with the relief in prayer (A) for delivery up of the shares in question, or identical shares, and (C), all the proprietary rights deriving from those shares between 6 September and the present, it is based on an implied term stated in paragraph 49 of the proposed amendment.  I shall not repeat the pleadings but it is clear that a request by the deceased or his nominee is a prerequisite for invoking that particular implied term to demand the plaintiff to deliver up the shares in question.

4.  Mr Wong for the 2nd defendant has fairly conceded that the demand is only made by way of these proposed amendments now placed before the court;  in other words, at the time when the complaint was filed, no proper cause of action based on implied term was constituted.

5.  The shares were sold in the months of August, September and October 2000.  If I were to allow the amendment today, I will be allowing a claim which is clearly time barred.  I do not think I should exercise my discretion in that manner.

6.  The proposed amendments relating to or in support of prayers (A) and (C) are not allowed.  Prayers (A) and (C) themselves are struck out.  Other amendments are allowed.

	(J Poon) Judge of the Court of First Instance
	High Court

 

Mr Dennis W H Kwok, instructed by Woo, Kwan, Lee & Lo, for the plaintiff

1st defendant, appeared in person

Mr Brian C W Wong, instructed by Keith Lam Lau & Chan, for the 2nd defendant

Please refer to CACV205/2013 for the relevant appeal(s) to the Court of Appeal.