張家港市博雅貿易有限公司 v. ASD (HK) LTD

張家港市博雅貿易有限公司 v. ASD (HK) LTD

The court held that the fraud exclusion did not apply because the plaintiff did not specifically plead fraud or dishonesty; on the merits, summary judgment was refused for the Brazilian Purchase Orders because triable issues of defective goods existed; summary judgment was granted conditionally for the Subsequent Peruvian Purchase Orders subject to the defendant paying HK$286,769.34 into court within 28 days, failing which judgment for US$36,765.30 will be entered; unconditional leave to defend was granted for the Brazilian Purchase Orders; costs to follow the condition (costs in the cause if payment made; if not, judgment with costs relating to Peruvian order and costs relating to...

Citation
張家港市博雅貿易有限公司 v. ASD (HK) LTD
Parties
Plaintiff: Plaintiff; Defendant: Defendant
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
29 October 2015
Case Number
DCCJ2507/2014
Procedural Posture
Goods Sold and Delivered / Commercial Dispute / Summary Judgment Application Under Order 14 R 1 (district Court)
Outcome
Summary judgment refused in part and granted conditionally in part
Legal Topics
Summary Judgment, Equitable Set Off, Fraud Exclusion, Sale of Goods, Costs
Source Language
EN
Civil Commercial Contract Civil Procedure Summary Judgment Equitable Set Off Fraud Exclusion Sale of Goods +1 more

Case Brief

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Parties

Plaintiff

Plaintiff

Defendant

Defendant

Procedural Posture

Goods Sold and Delivered / Commercial Dispute / Summary Judgment Application Under Order 14 R 1 (district Court)

Legal Issues

  1. 1 Whether summary judgment is appropriate for amounts claimed under Brazilian Purchase Orders
  2. 2 Whether summary judgment is appropriate for amounts claimed under Peruvian Purchase Orders
  3. 3 Whether the fraud exclusion under O 14 r 1(2)(b) applies because plaintiff pleaded dishonesty/fabrication

Ratio Decidendi

The court held that the fraud exclusion did not apply because the plaintiff did not specifically plead fraud or dishonesty; on the merits, summary judgment was refused for the Brazilian Purchase Orders because triable issues of defective goods existed; summary judgment was granted conditionally for the Subsequent Peruvian Purchase Orders subject to the defendant paying HK$286,769.34 into court within 28 days, failing which judgment for US$36,765.30 will be entered; unconditional leave to defend was granted for the Brazilian Purchase Orders; costs to follow the condition (costs in the cause if payment made; if not, judgment with costs relating to Peruvian order and costs relating to...

Court Disposition

Summary judgment refused in part and granted conditionally in part

Orders

  • Defendant granted conditional leave to defend the Subsequent Peruvian Purchase Orders provided defendant pays HK$286,769.34 into court within 28 days from date of judgment
  • If defendant fails to pay HK$286,769.34 within 28 days, judgment for US$36,765.30 to be entered against the defendant