SITEC ELECTRONICS LTD AND OTHERS v. CHAN KWOK KEUNG t/a CHAP YAU (KEUNG KEE) CHINA HK TRANSPORT CO

SITEC ELECTRONICS LTD AND OTHERS v. CHAN KWOK KEUNG t/a CHAP YAU (KEUNG KEE) CHINA HK TRANSPORT CO

The court held that on the pleadings as a whole it was not a plain and obvious case that the defence of limitation of liability by an implied term was unsustainable; there were issues of law and fact for trial, therefore the strike-out appeal was dismissed and the master’s decision was upheld; the Defendant's application to re-amend the defence was granted with the Plaintiffs' consent regarding that amendment.

Citation
SITEC ELECTRONICS LTD AND OTHERS v. CHAN KWOK KEUNG t/a CHAP YAU (KEUNG KEE) CHINA HK TRANSPORT CO
Parties
Plaintiff: SITEC ELECTRONICS LIMITED; Plaintiff: AMIC TECHNOLOGY (TAIWAN) INC.; Plaintiff: DONGGUAN SITEC SEMI-CONDUCTOR COMPANY LIMITED; Defendant: Defendant
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
3 November 2006
Case Number
DCCJ1456/2004
Procedural Posture
Civil Contract and Tort (carriage of Goods) / Interlocutory Appeal (re Hearing)
Outcome
Appeal dismissed; Master Poon's order upheld; Defendant's application to re-amend the amended defence granted.
Legal Topics
Implied Terms, Limitation of Liability, Striking Out Under Order 18 Rule 19, Amendment of Pleadings, Costs, Certificate for Counsel
Source Language
EN
Contract Tort (negligence) Carriage of Goods Civil Procedure (pleadings and Interlocutory Applications) Implied Terms Limitation of Liability Striking Out Under Order 18 Rule 19 Amendment of Pleadings +2 more

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Parties

SITEC ELECTRONICS LIMITED

Plaintiff

AMIC TECHNOLOGY (TAIWAN) INC.

Plaintiff

DONGGUAN SITEC SEMI-CONDUCTOR COMPANY LIMITED

Plaintiff

Defendant

Defendant

Procedural Posture

Civil Contract and Tort (carriage of Goods) / Interlocutory Appeal (re Hearing)

Legal Issues

  1. 1 Whether an implied term limiting the carrier's liability to the cost of freight can be legitimately pleaded in the defence
  2. 2 Whether paragraphs 18 and 24 of the amended defence should be struck out as plain and obvious under Order 18 rule 19
  3. 3 Whether the defendant may delete reference to an expressed term in paragraph 18 and rely only on an implied term

Ratio Decidendi

The court held that on the pleadings as a whole it was not a plain and obvious case that the defence of limitation of liability by an implied term was unsustainable; there were issues of law and fact for trial, therefore the strike-out appeal was dismissed and the master’s decision was upheld; the Defendant's application to re-amend the defence was granted with the Plaintiffs' consent regarding that amendment.

Court Disposition

Appeal dismissed; Master Poon's order upheld; Defendant's application to re-amend the amended defence granted.

Orders

  • Plaintiffs to pay costs of this appeal to the Defendant
  • By consent, costs of the Defendant's summons for re-amendment to be to the Plaintiffs