CHEUNG CHI PO v. KE JUN XIANG

CHEUNG CHI PO v. KE JUN XIANG

Leave to appeal was granted because the judge could not conclude there were no reasonable prospects of success under s14AA(4); the judge applied the correct test, did not reverse the burden of proof, and properly balanced inherent improbabilities in the defence against the totality of evidence and absence of expected evidence, leaving factual matters to be resolved at trial.

Citation
CHEUNG CHI PO v. KE JUN XIANG
Parties
Plaintiff: Cheung Chi Po; Defendant: Ke Jun Xiang
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 August 2011
Case Number
HCA1168/2009
Procedural Posture
Application for Leave to Appeal / Leave Application in Court of First Instance (judgment Delivered 29 August 2011)
Outcome
Leave to appeal granted
Legal Topics
Setting Aside Default Judgment, Leave to Appeal, Real Prospects Test, Burden of Proof, Promissory Note, Commercial Improbability
Source Language
EN
Civil Procedure Contract Appeals Enforcement of Judgments Setting Aside Default Judgment Leave to Appeal Real Prospects Test Burden of Proof +2 more

Case Brief

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Parties

Cheung Chi Po

Plaintiff

Ke Jun Xiang

Defendant

Procedural Posture

Application for Leave to Appeal / Leave Application in Court of First Instance (judgment Delivered 29 August 2011)

Legal Issues

  1. 1 Whether leave to appeal should be granted under s14AA(4) having reasonable prospect of success or other reason in the interests of justice
  2. 2 Whether the judge erred in finding the proposed defence had a real prospect of success despite finding it lacked commercial sense
  3. 3 Whether the judge reversed the burden of proof by requiring the plaintiff to produce incontrovertible evidence

Ratio Decidendi

Leave to appeal was granted because the judge could not conclude there were no reasonable prospects of success under s14AA(4); the judge applied the correct test, did not reverse the burden of proof, and properly balanced inherent improbabilities in the defence against the totality of evidence and absence of expected evidence, leaving factual matters to be resolved at trial.

Court Disposition

Leave to appeal granted

Orders

  • Leave to appeal granted
  • Costs of the leave application to be dealt with in the appeal