KWONG IAN (HONG KONG) CONSTRUCTION AND REAL ESTATE DEVELOPMENT CO LTD v. GLORIOUS SUN (HIGHWAY DEVELOPMENT LTD) AND OTHERS

HCA 260/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 260 OF 2006

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BETWEEN

  KWONG IAN (HONG KONG) CONSTRUCTION AND REAL ESTATE DEVELOPMENT COMPANY LIMITED  Plaintiff
  (廣仁(香港)建築置業發展有限公司)  
  (for itself and on behalf of LUCKY MONEY LIMITED
(大利富有限公司))
 
  and  
GLORIOUS SUN 1st Defendant
(HIGHWAY DEVELOPMENT LIMITED)
(朗日高速公路發展有限公司)
HO KAI CHEONG (何繼昌) 2nd Defendant
CHEUNG MIU SEUNG EMILY (張妙嫦) 3rd Defendant
CHEUNG MIU MEI AMY (張妙媚) 4th Defendant
CHEUNG KWAI WOON (張桂煥) 5th Defendant
JIN HUI XIANG (靳惠祥) 6th Defendant
GOLDEN TREE INVESTMENTS LIMITED 7th Defendant
WAI ON FINANCE LIMITED 8th Defendant
LITHIUM INDUSTRIAL LIMITED 9th Defendant
LUCKY MONEY LIMITED
(大利富有限公司)
10th Defendant

____________

HCA 261/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 261 OF 2006

____________

BETWEEN

  KWONG IAN (HONG KONG) CONSTRUCTION AND REAL ESTATE DEVELOPMENT COMPANY LIMITED  Plaintiff
  (廣仁(香港)建築置業發展有限公司)  
  (for itself and on behalf of LUCKY EMOTION LIMITED
(大利怡有限公司))
 
  and  
GLORIOUS SUN
(HIGHWAY DEVELOPMENT LIMITED)
(朗日高速公路發展有限公司)
1st Defendant
HO KAI CHEONG (何繼昌) 2nd Defendant
CHEUNG MIU SEUNG EMILY (張妙嫦) 3rd Defendant
CHEUNG MIU MEI AMY (張妙媚) 4th Defendant
CHEUNG KWAI WOON (張桂煥) 5th Defendant
JIN HUI XIANG (靳惠祥) 6th Defendant
GOLDEN TREE INVESTMENTS LIMITED 7th Defendant
WAI ON FINANCE LIMITED 8th Defendant
LITHIUM INDUSTRIAL LIMITED 9th Defendant
LUCKY EMOTION LIMITED
(大利怡有限公司)
10th Defendant

____________

HCA 262/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 262 OF 2006

____________

BETWEEN

  KWONG IAN (HONG KONG) CONSTRUCTION AND REAL ESTATE DEVELOPMENT COMPANY LIMITED Plaintiff 
   (廣仁(香港)建築置業發展有限公司)  
  (for itself and on behalf of LUCKY EXTEND LIMITED
(大利展有限公司))
 
  and  
GLORIOUS SUN
(HIGHWAY DEVELOPMENT LIMITED) (朗日高速公路發展有限公司)
1st Defendant
HO KAI CHEONG (何繼昌) 2nd Defendant
CHEUNG MIU SEUNG EMILY (張妙嫦) 3rd Defendant
CHEUNG MIU MEI AMY (張妙媚) 4th Defendant
CHEUNG KWAI WOON (張桂煥) 5th Defendant
JIN HUI XIANG (靳惠祥) 6th Defendant
GOLDEN TREE INVESTMENTS LIMITED 7th Defendant
WAI ON FINANCE LIMITED 8th Defendant
LITHIUM INDUSTRIAL LIMITED 9th Defendant
LUCKY EMOTION LIMITED
(大利展有限公司)
10th Defendant

____________

(Heard Together)

Before: Deputy High Court Judge L. Chan in Chambers

Date of Hearing: 9 August 2006

Date of Decision: 9 August 2006

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D E C I S I O N

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1. The 10th defendant has made an application for part of the name of the plaintiff to be struck out. The gravamen of the complaintis the presence of the words “and on behalf of Lucky Money Limited” as part of the description of the plaintiff. The 10th defendantcomplained that it could not appear both as the plaintiff and as a defendant, hence the application for striking out those words. If these words are struck out, the action will continue as a derivative action and Lucky Money Limited will remain as the 10th defendant. I think there is a lot of good sense in this application and it does not affect the merits of the action.

2. Mr Pow suggested that I should modify the description of the plaintiff to “and on behalf of (the other shareholders of) LuckyMoney Limited (but to the exclusion of the 6th, 7th, 8th and 9th defendants)” by inserting the words in parenthesis. This formulain reality means nothing, because apart from Kwong Ian (Hong Kong) Construction and Real Estate Development Company Limited, theonly other shareholders of Lucky Money Limited are the 6th, 7th, 8th and 9th defendants. Since there is no shareholder who is notrepresented as a party in this action, I do not think I should accept Mr Pow’s suggestion and adopt the lengthy formula, whichamounts to nothing.

3. I therefore allow the 10th defendant’s application for striking out the words “and on behalf of Lucky Money Limited” fromthe title of the plaintiff. I also order costs of the application be paid by Kwong Ian to the 10th defendant.

(Submission re costs)

4. The costs order is not against the plaintiff but Kwong Ian (Hong Kong) Construction and Real Estate Development Company Limitedas the application was made by the 10th defendant to strike out its name from the plaintiff and Kwong Ian resisted it but failed. The costs ordered in favour of Lucky Money shall be taxed and paid forthwith.

5. I make the same orders for HCA261 and HCA262 of 2006.

  (L. Chan)
Deputy High Court Judge

Mr Jason Pow, SC and Mr Victor Dawes, instructed by Messrs Gallant Y T Ho & Co., for the Plaintiff.

Mr Warren Chan, SC and Mr John Shek, instructed by Messrs David Y Y Fung & Co., for the 1st, 2nd and 3rd Defendants.

Mr Alan Leong SC and Mr Alfred Liang, instructed by Messrs Chan & Yau, for the 4th – 9th Defendants.

Mr Johnny Mok, SC, instructed by Messrs W K To & Co., for the 10th Defendant.