FEERNI DEVELOPMENT LTD. v. MAK HIN KWAN

FEERNI DEVELOPMENT LTD. v. MAK HIN KWAN

Because it is possible that the defendant's account — that he reasonably believed Shop J included Shop H and that the agent did not correct him — could be believed at trial, there exists a credible triable issue and the defendant must be permitted to defend; summary judgment must be refused and the appeal dismissed.

Citation
FEERNI DEVELOPMENT LTD. v. MAK HIN KWAN
Parties
Plaintiff: Feerni Development Limited; Defendant: Mak Hin Kwan
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
6 January 1998
Case Number
HCA10194/1997
Procedural Posture
Appeal From Dismissal of Summary Judgment Summons (order 14) / Interlocutory Appeal From Registrar's Decision
Outcome
Appeal dismissed; defendant granted leave to defend; summary judgment refused.
Legal Topics
Summary Judgment, Leave to Defend, Mutual Mistake, Failure of Consideration, Dishonoured Cheque
Source Language
EN
Contract Civil Procedure Property Commercial Law Summary Judgment Leave to Defend Mutual Mistake Failure of Consideration +1 more

Case Brief

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Parties

Feerni Development Limited

Plaintiff

Mak Hin Kwan

Defendant

Procedural Posture

Appeal From Dismissal of Summary Judgment Summons (order 14) / Interlocutory Appeal From Registrar's Decision

Legal Issues

  1. 1 Whether the defendant has shown a credible triable issue sufficient to obtain leave to defend against summary judgment
  2. 2 Whether the defendant's assertion of a fundamental mistake (that Shop J included Shop H) can possibly be believed at trial
  3. 3 Whether countermanding the cheque was justified by failure of the underlying contract/consideration

Ratio Decidendi

Because it is possible that the defendant's account — that he reasonably believed Shop J included Shop H and that the agent did not correct him — could be believed at trial, there exists a credible triable issue and the defendant must be permitted to defend; summary judgment must be refused and the appeal dismissed.

Court Disposition

Appeal dismissed; defendant granted leave to defend; summary judgment refused.

Orders

  • Appeal dismissed
  • Defendant permitted to defend (leave to defend granted)