CHEUNG KOWK SUN t/a GOLDEN TEX TRADING CO AND ANOTHER v. HO WING SUN t/a FU WO PLASTIC FTY

CHEUNG KOWK SUN t/a GOLDEN TEX TRADING CO AND ANOTHER v. HO WING SUN t/a FU WO PLASTIC FTY

The court concluded the defendant's defences had no real prospect of success: the pleaded collateral agreement was vague and did not bind the 2nd Plaintiff; the defendant's conduct (selling goods to scrap dealers) indicated acceptance and passing of property, providing consideration for the cheques; and the counterclaim/set-off did not prevent entry of judgment. Judgment for the 2nd Plaintiff for US$70,860.94 with interest was therefore entered.

Citation
CHEUNG KOWK SUN t/a GOLDEN TEX TRADING CO AND ANOTHER v. HO WING SUN t/a FU WO PLASTIC FTY
Parties
1st Plaintiff: Cheung Kowk Sun trading as Golden Tex Trading Co.; 2nd Plaintiff: Goldyue Company Limited; Defendant: Ho Wing Sun trading as Fu Wo Plastic Fty.
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
12 April 2006
Case Number
DCCJ776/2005
Procedural Posture
Civil Action (debt Claim) / Application for Judgment Under Order 14 R.1 (summary Judgment) — Decision and Entry of Judgment
Outcome
Judgment entered for the 2nd Plaintiff (Goldyue Company Limited) against the Defendant (Ho Wing Sun)
Legal Topics
Summary Judgment, Cheques, Failure of Consideration, Set Off, Property in Goods, Collateral Contract, Judgment Interest, Costs
Source Language
EN
Contract Commercial Law Civil Procedure Debt Recovery Summary Judgment Cheques Failure of Consideration Set Off +4 more

Case Brief

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Parties

Cheung Kowk Sun trading as Golden Tex Trading Co.

1st Plaintiff

Goldyue Company Limited

2nd Plaintiff

Ho Wing Sun trading as Fu Wo Plastic Fty.

Defendant

Procedural Posture

Civil Action (debt Claim) / Application for Judgment Under Order 14 R.1 (summary Judgment) — Decision and Entry of Judgment

Legal Issues

  1. 1 Whether the 2nd Plaintiff was entitled to present cheques payable to it given invoices issued by both plaintiffs
  2. 2 Whether there was a total failure of consideration negating the payee's entitlement to payment
  3. 3 Whether an oral collateral agreement prevented presentation of the cheques and whether it bound the 2nd Plaintiff

Ratio Decidendi

The court concluded the defendant's defences had no real prospect of success: the pleaded collateral agreement was vague and did not bind the 2nd Plaintiff; the defendant's conduct (selling goods to scrap dealers) indicated acceptance and passing of property, providing consideration for the cheques; and the counterclaim/set-off did not prevent entry of judgment. Judgment for the 2nd Plaintiff for US$70,860.94 with interest was therefore entered.

Court Disposition

Judgment entered for the 2nd Plaintiff (Goldyue Company Limited) against the Defendant (Ho Wing Sun)

Orders

  • Judgment for US$70,860.94 in favour of the 2nd Plaintiff with interest from 22 February 2005 at the judgment rate until satisfaction
  • Costs: order nisi that the Defendant pay the 2nd Plaintiff's costs of the action and of the application, to be made absolute in 14 days and to be taxed if not agreed, with certificate for Counsel