KOBAYASHI (HK) LTD v. TSAI KUT KAN t/a KAN FUNG SECURITIES CO AND ANOTHER

KOBAYASHI (HK) LTD v. TSAI KUT KAN t/a KAN FUNG SECURITIES CO AND ANOTHER

Because the explanations and allegations by the 2nd defendant were gravely suspicious and potentially a sham, the court granted conditional leave to defend only on the condition that the 2nd defendant pay into court $400,000 within 14 days, failing which the Registrar's summary judgment would stand; upon payment the Registrar's judgment is set aside and costs are to be costs in the cause.

Citation
KOBAYASHI (HK) LTD v. TSAI KUT KAN t/a KAN FUNG SECURITIES CO AND ANOTHER
Parties
Plaintiff: KOBAYASHI (H.K.) LIMITED; 1st Defendant: TSAI KUT KAN trading as KAN FUNG SECURITIES COMPANY; 2nd Defendant: CHOI LIN CHI
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
18 July 1980
Case Number
HCA5420/1979
Procedural Posture
Appeal From Registrar's Order (summary Judgment) / Decision on Appeal
Outcome
Conditional leave to defend granted subject to payment into court of $400,000 within 14 days; if payment made the Registrar's judgment of 25 February 1980 is set aside, if not payment the Registrar's judgment stands.
Legal Topics
Summary Judgment, Payment on Cheque, Conditional Leave to Defend, Margin/security for Trading, Costs
Source Language
EN
Civil Commercial Contract Procedure Summary Judgment Payment on Cheque Conditional Leave to Defend Margin/security for Trading +1 more

Case Brief

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Parties

KOBAYASHI (H.K.) LIMITED

Plaintiff

TSAI KUT KAN trading as KAN FUNG SECURITIES COMPANY

1st Defendant

CHOI LIN CHI

2nd Defendant

Procedural Posture

Appeal From Registrar's Order (summary Judgment) / Decision on Appeal

Legal Issues

  1. 1 Whether the Registrar's summary judgment against the 2nd defendant should be set aside
  2. 2 Whether the 2nd defendant has a bona fide triable defence or whether the defence is a sham
  3. 3 Whether the cheque was given as margin for a new account and whether cancellation of that account defeats liability

Ratio Decidendi

Because the explanations and allegations by the 2nd defendant were gravely suspicious and potentially a sham, the court granted conditional leave to defend only on the condition that the 2nd defendant pay into court $400,000 within 14 days, failing which the Registrar's summary judgment would stand; upon payment the Registrar's judgment is set aside and costs are to be costs in the cause.

Court Disposition

Conditional leave to defend granted subject to payment into court of $400,000 within 14 days; if payment made the Registrar's judgment of 25 February 1980 is set aside, if not payment the Registrar's judgment stands.

Orders

  • 2nd defendant to pay into court $400,000.00 within 14 days from date of judgment
  • Upon payment into court the Registrar's judgment dated 25 February 1980 against the 2nd defendant is set aside