CHENG MAN YAU v. CHENG KIN PING

CHENG MAN YAU v. CHENG KIN PING

Although the Defendant's defence was weak and tenuously supported, there existed a real dispute of fact about cash payment/remittance and accuracy of running accounts sufficient to defeat summary judgment; accordingly the summary judgment was set aside and conditional leave to defend was granted subject to payment into court of the disputed sum within a fixed time.

Citation
CHENG MAN YAU v. CHENG KIN PING
Parties
Plaintiff: Plaintiff; Defendant: Defendant; Director/shareholder of Defendant: Cheng Kin Ping
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
22 February 2001
Case Number
HCA17725/1999
Procedural Posture
Civil Appeal Against Summary Judgment / Judgment on Appeal in Chambers
Outcome
Appeal allowed; Master C B Chan's summary judgment set aside; conditional leave to defend granted on payment into court of $260,000 within 14 days; failure to comply results in dismissal of the appeal with costs to be taxed if not agreed.
Legal Topics
Summary Judgment, Running Accounts, Mistake of Fact, Failure of Consideration, Payment Into Court, Conditional Leave to Defend
Source Language
EN
Civil Procedure Contract Restitution Summary Judgment Running Accounts Mistake of Fact Failure of Consideration Payment Into Court +1 more

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Parties

Plaintiff

Plaintiff

Defendant

Defendant

Cheng Kin Ping

Director/shareholder of Defendant

Procedural Posture

Civil Appeal Against Summary Judgment / Judgment on Appeal in Chambers

Legal Issues

  1. 1 Whether the alleged mistake in running accounts raises a triable issue to defeat summary judgment
  2. 2 Whether there was a total failure of consideration such that the cheque obligation is void
  3. 3 Whether conditional leave to defend should be granted and on what terms

Ratio Decidendi

Although the Defendant's defence was weak and tenuously supported, there existed a real dispute of fact about cash payment/remittance and accuracy of running accounts sufficient to defeat summary judgment; accordingly the summary judgment was set aside and conditional leave to defend was granted subject to payment into court of the disputed sum within a fixed time.

Court Disposition

Appeal allowed; Master C B Chan's summary judgment set aside; conditional leave to defend granted on payment into court of $260,000 within 14 days; failure to comply results in dismissal of the appeal with costs to be taxed if not agreed.

Orders

  • Set aside the order of Master C B Chan granting summary judgment.
  • Leave granted to the Defendant in HCA 17724/1999 to defend conditional upon payment into court of $260,000.00 within 14 days.