CHAN CHI WAH v. CHAN ALBERT KOON KEUNG AND OTHERS

CHAN CHI WAH v. CHAN ALBERT KOON KEUNG AND OTHERS

The court found on the balance of evidence that the promissory note generated an outstanding indebtedness, the July 2002 oral variation was effective and affirmed liability, the HK$850,000 was a part payment reducing but not discharging the debt rather than a loan to the plaintiff, the share transfer did not satisfy the debt, and the plaintiff's claim was not time barred; accordingly judgment was entered for the plaintiff in HCA 128/2011 and the defendants' action HCA 766/2012 was dismissed.

Citation
CHAN CHI WAH v. CHAN ALBERT KOON KEUNG AND OTHERS
Parties
Plaintiff (hca 128/2011); Defendant (hca 766/2012): Chan Chi Wah; 1st Defendant (hca 128/2011); Defendant's Director (hca 766/2012): Chan Albert Koon Keung; 2nd Defendant (hca 128/2011): Lo Yiu Sun; 3rd Defendant (hca 128/2011): Leung Yip Shing; Plaintiff (hca 766/2012): Wah Fung Sauce Company Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
13 June 2014
Case Number
HCA128/2011
Procedural Posture
Civil Debt/contract / Judgment (court of First Instance)
Outcome
Judgment for the plaintiff in HCA 128/2011; action HCA 766/2012 dismissed
Legal Topics
Promissory Note, Part Payment, Oral Variation of Terms, Directors' Loans, Limitation Defence, Documentary Evidence and Company Accounts
Source Language
EN
Contract Debt Recovery Company Law Limitation Evidence Promissory Note Part Payment Oral Variation of Terms +3 more

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Parties

Chan Chi Wah

Plaintiff (hca 128/2011); Defendant (hca 766/2012)

Chan Albert Koon Keung

1st Defendant (hca 128/2011); Defendant's Director (hca 766/2012)

Lo Yiu Sun

2nd Defendant (hca 128/2011)

Leung Yip Shing

3rd Defendant (hca 128/2011)

Wah Fung Sauce Company Limited

Plaintiff (hca 766/2012)

Procedural Posture

Civil Debt/contract / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether the promissory note gave rise to an outstanding debt and its quantum
  2. 2 Whether an oral variation in July 2002 extended repayment and constituted an affirmation of liability
  3. 3 Whether the HK$850,000 cheque dated 17 August 2007 was a part payment of the promissory note debt or a loan from Wah Fung to the plaintiff

Ratio Decidendi

The court found on the balance of evidence that the promissory note generated an outstanding indebtedness, the July 2002 oral variation was effective and affirmed liability, the HK$850,000 was a part payment reducing but not discharging the debt rather than a loan to the plaintiff, the share transfer did not satisfy the debt, and the plaintiff's claim was not time barred; accordingly judgment was entered for the plaintiff in HCA 128/2011 and the defendants' action HCA 766/2012 was dismissed.

Court Disposition

Judgment for the plaintiff in HCA 128/2011; action HCA 766/2012 dismissed

Orders

  • Judgment for the plaintiff in HCA 128/2011 for the reliefs claimed in the Statement of Claim with interest at the claimed rate to date of judgment and at judgment rate thereafter
  • Costs to the plaintiff in HCA 128/2011 on a party-and-party basis, to be taxed if not agreed