TOYO ADVERTISING COMPANY LIMITED v. CHEUNG CHUNG FAT trading as KIN SHING COMPANY

TOYO ADVERTISING COMPANY LIMITED v. CHEUNG CHUNG FAT trading as KIN SHING COMPANY

The Court of Appeal allowed the appeal and set aside the District Judge's order and consequent final judgment because the District Judge erred in requiring payment into court under Rule 27(1)(b) where the defence disclosed a reasonable ground; the fraud allegation, read with available evidence and pleadings, disclosed a triable issue and deficiencies could be remedied under Rule 38A, so the defendant should be permitted to defend without conditional payment.

Citation
TOYO ADVERTISING COMPANY LIMITED v. CHEUNG CHUNG FAT trading as KIN SHING COMPANY
Parties
Plaintiff/respondent: TOYO ADVERTISING COMPANY LIMITED; Defendant/appellant: CHEUNG CHUNG FAT trading as KIN SHING COMPANY
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
7 August 1997
Case Number
CACV67/1996
Procedural Posture
Civil Appeal / Appeal From District Court (challenge to Summary Judgment and Payment Into Court Order)
Outcome
Appeal allowed in part; order of 3 July 1995 and final judgment of 30 November 1995 set aside; cross-appeal dismissed; motion to set aside notice of appeal dismissed; respondent granted leave to file Respondent's Notice out of time.
Legal Topics
Summary Judgment, Striking Out/adequacy of Defence (rule 38 A), Payment Into Court, Consignment Sale, Fraudulent Misrepresentation, Dishonoured Cheque
Source Language
EN
Civil Procedure Contract Negotiable Instruments Summary Judgment Striking Out/adequacy of Defence (rule 38 A) Payment Into Court Consignment Sale Fraudulent Misrepresentation +1 more

Case Brief

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Parties

TOYO ADVERTISING COMPANY LIMITED

Plaintiff/respondent

CHEUNG CHUNG FAT trading as KIN SHING COMPANY

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From District Court (challenge to Summary Judgment and Payment Into Court Order)

Legal Issues

  1. 1 Whether the defendant disclosed any reasonable ground of defence
  2. 2 Whether the District Judge was entitled under Rule 27(1)(b) to order payment into court as a condition for defending the action
  3. 3 Whether the allegation of fraud was pleaded with sufficient particularity to defeat summary judgment/striking out

Ratio Decidendi

The Court of Appeal allowed the appeal and set aside the District Judge's order and consequent final judgment because the District Judge erred in requiring payment into court under Rule 27(1)(b) where the defence disclosed a reasonable ground; the fraud allegation, read with available evidence and pleadings, disclosed a triable issue and deficiencies could be remedied under Rule 38A, so the defendant should be permitted to defend without conditional payment.

Court Disposition

Appeal allowed in part; order of 3 July 1995 and final judgment of 30 November 1995 set aside; cross-appeal dismissed; motion to set aside notice of appeal dismissed; respondent granted leave to file Respondent's Notice out of time.

Orders

  • Motion to set aside the notice of appeal dismissed
  • Respondent granted leave to file Respondent's Notice out of time