FU CHUEN KWAN v. KE JUNXIANG

FU CHUEN KWAN v. KE JUNXIANG

The Court held that the defendant's evidence was admissible as asserting conditional delivery under s.21(2)(b) and that, although the defence was shadowy and suspicious, it raised triable issues; accordingly leave to defend was granted but made conditional on payment into court of HK$200,000 within 28 days; the Master's order entering judgment was set aside but the Master's dismissal of the extension application and associated costs of the final hearing were not disturbed.

Citation
FU CHUEN KWAN v. KE JUNXIANG
Parties
Plaintiff: Plaintiff; Defendant: Defendant
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
21 April 2006
Case Number
DCCJ4769/2005
Procedural Posture
Civil Action on Dishonoured Cheque / Appeal From Master's Interlocutory Orders (summary Judgment and Refusal of Extension of Time)
Outcome
Set aside Master’s order entering judgment; granted conditional leave to defend; upheld Master's dismissal of extension application and some costs orders; conditional orders and further procedural directions given.
Legal Topics
Summary Judgment, Conditional Delivery of Negotiable Instruments, Admissibility of Parol Evidence, Leave to Defend Out of Time, Payment Into Court as Condition, Extension of Time, Costs
Source Language
EN
Commercial Law Bills of Exchange Civil Procedure Evidence Summary Judgment Conditional Delivery of Negotiable Instruments Admissibility of Parol Evidence Leave to Defend Out of Time +3 more

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Parties

Plaintiff

Plaintiff

Defendant

Defendant

Procedural Posture

Civil Action on Dishonoured Cheque / Appeal From Master's Interlocutory Orders (summary Judgment and Refusal of Extension of Time)

Legal Issues

  1. 1 Whether oral/parol evidence is admissible to show conditional delivery or defeasance of a cheque
  2. 2 Whether the defendant's pleaded defence is credible such that leave to defend should be granted
  3. 3 Whether leave to defend should be subject to conditions and what those conditions should be

Ratio Decidendi

The Court held that the defendant's evidence was admissible as asserting conditional delivery under s.21(2)(b) and that, although the defence was shadowy and suspicious, it raised triable issues; accordingly leave to defend was granted but made conditional on payment into court of HK$200,000 within 28 days; the Master's order entering judgment was set aside but the Master's dismissal of the extension application and associated costs of the final hearing were not disturbed.

Court Disposition

Set aside Master’s order entering judgment; granted conditional leave to defend; upheld Master's dismissal of extension application and some costs orders; conditional orders and further procedural directions given.

Orders

  • Order set aside the Master's order of 19 December 2005 entering judgment against the Defendant
  • Master's order dismissing the Defendant's application for extension of time to file his affirmation is not disturbed