CHEUNG SIU LIN v. SHUN SENG HOP YICK KNITTING FACTORY LTD AND ANOTHER

CHEUNG SIU LIN v. SHUN SENG HOP YICK KNITTING FACTORY LTD AND ANOTHER

On the balance of all evidence the court preferred the contemporaneous accounting records, the unpresented cheques and witness evidence of the Mother, AYP and APC over the account and explanations of the Company and AWC, finding that the Mother and AYP had extended loans to the Company, that AWC gave a personal undertaking evidenced by his cheques and is liable to the same extent, and that APC's set-off/cheque discounting arrangement justified dismissal of the Company's claim against him.

Citation
[2021] HKCFI 120
Parties
Plaintiff (mother's Action): Cheung Siu Lin; Plaintiff (ayp's Action): Au Yin Pin; 1st Defendant (mother's/ayp's Actions); Plaintiff (company's Action): Shun Seng Hop Yick Knitting Factory Limited; 2nd Defendant (mother's/ayp's Actions): Au Wing Chor; Defendant (company's Action): Au Piu Chor
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 January 2021
Case Number
HCA360/2016
Procedural Posture
Civil (consolidated Actions for Debt, Guarantee and Set Off) / Judgment at Trial (court of First Instance)
Outcome
Judgment for the Mother and AYP against the Company and Au Wing Chor; claim by the Company against Au Piu Chor dismissed
Legal Topics
Loans and Guarantees, Director's Personal Undertaking, Set Off, Cheque Discounting, Credibility Assessment, Costs
Source Language
EN
Contract Law Company Law Equity Evidence Loans and Guarantees Director's Personal Undertaking Set Off Cheque Discounting +2 more

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Parties

Cheung Siu Lin

Plaintiff (mother's Action)

Au Yin Pin

Plaintiff (ayp's Action)

Shun Seng Hop Yick Knitting Factory Limited

1st Defendant (mother's/ayp's Actions); Plaintiff (company's Action)

Au Wing Chor

2nd Defendant (mother's/ayp's Actions)

Au Piu Chor

Defendant (company's Action)

Procedural Posture

Civil (consolidated Actions for Debt, Guarantee and Set Off) / Judgment at Trial (court of First Instance)

Legal Issues

  1. 1 Whether the Mother and AYP extended loans to the Company and are owed principal and interest
  2. 2 Whether AWC gave a personal undertaking/guarantee evidenced by personal cheques on 28 January 2011
  3. 3 Whether the HK$300,000 (27 April 2011) and HK$828,109.38 (May 2013) were loans to the Company

Ratio Decidendi

On the balance of all evidence the court preferred the contemporaneous accounting records, the unpresented cheques and witness evidence of the Mother, AYP and APC over the account and explanations of the Company and AWC, finding that the Mother and AYP had extended loans to the Company, that AWC gave a personal undertaking evidenced by his cheques and is liable to the same extent, and that APC's set-off/cheque discounting arrangement justified dismissal of the Company's claim against him.

Court Disposition

Judgment for the Mother and AYP against the Company and Au Wing Chor; claim by the Company against Au Piu Chor dismissed

Orders

  • Judgment entered in HCA 2565/2014 & HCA 360/2016 for Cheung Siu Lin against Shun Seng Hop Yick Knitting Factory Limited and Au Wing Chor for the sum of HK$1,660,000 with interest on HK$1,360,000 from 28 January 2012 and on HK$300,000 from 27 January 2012 at 6% per annum until payment
  • Judgment entered in HCA 2566/2014 & HCA 359/2016 for Au Yin Pin against Shun Seng Hop Yick Knitting Factory Limited and Au Wing Chor for the sum of HK$2,668,109.38 with interest on HK$1,840,000 from 28 January 2012 and on HK$828,109.38 from 14 May 2013 at 6% per annum until payment