Mo Wai Ching And Another v Ho Wai Woon And Others

Judgment Cited in Precedent Map Related
Judgment Date10 July 1948
Judgement NumberCACV11/1948
Year1948
CourtCourt of Appeal (Hong Kong)
CACV000011/1948 MO WAI CHING AND ANOTHER v. HO WAI WOON AND OTHERS

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

APPEAL No. 11 of 1948

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on Appeal from Original Jurisdiction Action No. 75 of 1946.

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BETWEEN
Mo Wai Ching the Executrix of the Will of Poon Hau Chuen deceased and Poon Nim Kui deceased Appellant
(Defendant)

AND
Ho Wai Woon alias Ho Cho Yam Tong, Pun Chung Ewan Tong, Lai Cheong Hau Tong, Ng Yue Wo Tong, Pun Tai Tak Tong, Pun Cheuk Ming, Tung Kin Choi, Pun See Kee Meo Tong, Tung Wai Chik, Pun Shau Shan, Pun Chee Tong and Wei Yuen Tong Respondents
(Plaintiffs)

Coram: Mr. Justice E.H. Williams and Mr. Justics J. Reynolds.

Date of Judgment: 10 July 1948

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JUDGMENT

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1. This is an appeal against a decision of Gould J. in Chambers giving leave to the plaintiffs (respondents) to amend their statement of Claim: the Court is also asked for an order that action No. 75 do stand dismissed. It is necessary to make a reference to the course of events before dealing with arguments submitted.

2. On the 27th September, 1946, the plaintiffs (respondents) issued a writ in O.J. Action 75 of 1946 which writ was served on the 5th October ,1946. In it the plaintiffs (respondents) purport to be 12 in number and defendant (appellant) is sued as executrix of two deceased persons, Poon Hau Chuen and Poon Nim Kui. Plaintiffs asked for a declaration that Poon Nim Kui holds certain land with houses thereon as trustees for the partners of Wai Yuen Tong (named as 12th plaintiff) - clearly 'helds' should have read 'held' in view of the death of Poon Nim Kui: plaintiffs further asked that defendant be ordered to execute an assignment of the property to Ho Wai Woon (named as 1st plaintiff) as trustee for the Wai Yuen Tong or alternately a vesting order to the same effect.

3. From the general indorsement on the writ, it appears but only by inference, that plaintiffs Nos. 1 - 11 claimed to be 'partners' in the 12th plaintiff 'Tong'.

4. Of the 18 plaintiffs, only plaintiffs No. 1, 6, 7, 9 and 10 are apparently the names of persons, though 1st plaintiff has as alias a Tong name - the remaining plaintiffs are tong names. It is not clear on what authority a tong is entitled to be named as a plaintiff but in the argument before the Court it was submitted that a tong has always been treated in the Courts here as analogous to an ordinary firm - the analogy may, however, be pressed too far and may easily lead to the type of difficulty which has arisen in this case.

5. In the original statement of Claim filed on the 26th November, 1946, it was stated that all 12 plaintiffs were merchants residing at various addresses within and without the Colony: that they had entered into partnership with one other, since deceased, in the business of the Wai Yuen Tong firm in 1896, that 1st plaintiff was and still is managing partner of the partnership and that the property in dispute was purchased by the partnership and registered in the names of individuals who therefore held the land as trustees for the partnership.

6. On the 8th and 9th January 1947, solicitors for the appellant wrote to the solicitors who were then acting for the respondents requiring them in pursuance of section 484(1) of the code of Civil Procedure to give the names and addresses of all persons.

7. Constituting the firm of the 2nd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, and 12th plaintiffs. As the names of the 6th, 7th, 9th and 10th plaintiffs are those of individuals, it is not clear why they are described as firm names. Solicitors for the respondents replied that appellant's solicitors had misconstrued section 484(1) of the code as the present action was brought in the names of individual partners of the Wai Yuen Tong (12th plaintiff) with the exception of the defendant. It is difficult to understand why the solicitor so replied. It may be true that section 484(1) is hardly applicable to the case but it is not quite correct to describe plaintiffs 1 - 11 as partners in the firm: a partner is one individual: a tong may represent many persons. Tong names...

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