EXECTPADE LTD. v. LEE WING COTTON GOODS CO. AND ANOTHER

EXECTPADE LTD. v. LEE WING COTTON GOODS CO. AND ANOTHER

The Master had jurisdiction under Order 49 r.5 to determine garnishee liability summarily without the garnishee's consent; the evidence of the judgment debtor's proprietor (Poon), including first‑hand hearsay revealed in cross‑examination, was admissible and sufficient to establish that the goods were sold to Cheung acting for Lin Fung partnership; the father's subsequent sole proprietorship under the same name was a sham/transfer of the same business, making the current Lin Fung Trading Company liable under the Transfer of Business (Protection of Creditors) Ordinance; accordingly the garnishee order nisi was made absolute for $320,486.40.

Citation
EXECTPADE LTD. v. LEE WING COTTON GOODS CO. AND ANOTHER
Parties
Judgment Creditor: EXECTPADE LIMITED; Judgment Debtor: LEE MING COTTON GOODS CO.; Garnishee: LIN FUNG TRADING CO.
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
12 January 1990
Case Number
HCA8549/1987
Procedural Posture
Garnishee Proceedings Following Summary Judgment Enforcement and Order 48 Examination / Master's Hearing on Order Nisi and Determination of Garnishee Liability
Outcome
Garnishee order nisi made absolute; Lin Fung Trading Co (sole proprietorship under Chan Fat Wing found to be continuation/transfer of son's partnership) held liable to pay $320,486.40 to judgment creditor
Legal Topics
Summary Judgment, Order 49 R.5 Jurisdiction, Hearsay Admissibility, Cross Examination, Transfer of Business Liability
Source Language
EN
Debt Recovery Garnishee Proceedings Civil Evidence Contract Transfer of Business Summary Judgment Order 49 R.5 Jurisdiction Hearsay Admissibility +2 more

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Parties

EXECTPADE LIMITED

Judgment Creditor

LEE MING COTTON GOODS CO.

Judgment Debtor

LIN FUNG TRADING CO.

Garnishee

Procedural Posture

Garnishee Proceedings Following Summary Judgment Enforcement and Order 48 Examination / Master's Hearing on Order Nisi and Determination of Garnishee Liability

Legal Issues

  1. 1 Whether Lin Fung Trading Co. was indebted to the judgment debtor under invoice No.1301 dated 27 June 1987
  2. 2 Whether the garnishee (Lin Fung) was liable to pay the judgment debtor the outstanding price
  3. 3 Whether a Master has jurisdiction to determine garnishee liability summarily without garnishee consent under Order 49 r.5

Ratio Decidendi

The Master had jurisdiction under Order 49 r.5 to determine garnishee liability summarily without the garnishee's consent; the evidence of the judgment debtor's proprietor (Poon), including first‑hand hearsay revealed in cross‑examination, was admissible and sufficient to establish that the goods were sold to Cheung acting for Lin Fung partnership; the father's subsequent sole proprietorship under the same name was a sham/transfer of the same business, making the current Lin Fung Trading Company liable under the Transfer of Business (Protection of Creditors) Ordinance; accordingly the garnishee order nisi was made absolute for $320,486.40.

Court Disposition

Garnishee order nisi made absolute; Lin Fung Trading Co (sole proprietorship under Chan Fat Wing found to be continuation/transfer of son's partnership) held liable to pay $320,486.40 to judgment creditor

Orders

  • Garnishee order nisi dated 4 April 1989 made absolute
  • Lin Fung Trading Co. (proprietor Chan Fat Wing) liable to judgment creditor for $320,486.40