TERRY CHENG v. HO HO INVESTMENT LTD

TERRY CHENG v. HO HO INVESTMENT LTD

The appeal is allowed because the adjudicator erred in law by applying bailment principles without first directing production and consideration of the contractual terms printed on the back of the receipt; there is no legal basis to impose a duty to keep goods for the duration of the limitation period merely because they might serve as evidence; accordingly the matter must be remitted for trial de novo before a different adjudicator.

Citation
TERRY CHENG v. HO HO INVESTMENT LTD
Parties
Claimant (respondent): Terry Cheng; Defendant (applicant): Ho Ho Investment Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 March 2016
Case Number
HCSA34/2015
Procedural Posture
Small Claims Tribunal Appeal to Court of First Instance / Appeal Heard and Judgment Delivered; Remitted for Trial De Novo
Outcome
Appeal allowed
Legal Topics
Exemption Clauses, Duty of Care to Preserve Property, Limitation Period, Disposal of Uncollected Goods, Inquisitorial Duty of Tribunal Under Small Claims Regime, Production of Documents, Remittal for Trial De Novo
Source Language
EN
Contract Law Bailment Tort (negligence) Consumer Protection Civil Procedure Tribunal Practice Exemption Clauses Duty of Care to Preserve Property +5 more

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Parties

Terry Cheng

Claimant (respondent)

Ho Ho Investment Limited

Defendant (applicant)

Procedural Posture

Small Claims Tribunal Appeal to Court of First Instance / Appeal Heard and Judgment Delivered; Remitted for Trial De Novo

Legal Issues

  1. 1 Whether the adjudicator erred by finding a common law duty to retain goods for the duration of the limitation period
  2. 2 Whether the adjudicator had a duty to direct production of the back of the receipt containing contractual terms/exemption clause
  3. 3 Whether contractual terms/exemption clause on receipt could exclude liability for disposal of unclaimed goods and should have been considered

Ratio Decidendi

The appeal is allowed because the adjudicator erred in law by applying bailment principles without first directing production and consideration of the contractual terms printed on the back of the receipt; there is no legal basis to impose a duty to keep goods for the duration of the limitation period merely because they might serve as evidence; accordingly the matter must be remitted for trial de novo before a different adjudicator.

Court Disposition

Appeal allowed

Orders

  • Matter remitted to the Small Claims Tribunal for a trial de novo before a different adjudicator
  • Costs of the appeal to be costs in the cause of the new trial