PARKIE TRADING LTD. AND ANOTHER v. WONG TSUN TSUN THAI KITCHEN LTD. AND OTHERS

PARKIE TRADING LTD. AND ANOTHER v. WONG TSUN TSUN THAI KITCHEN LTD. AND OTHERS

The court held that the Guangzhou proceedings did not constitute a transaction set-off or counterclaim sufficient to defeat summary judgment or justify unconditional leave to defend; the 1st Defendant's appeal was dismissed and no interim stay of execution was granted. However the court found the 3rd Defendant's defence on the cheques raised an arguable point on consideration that could not be finally determined on summary judgment, allowed the 3rd Defendant's appeal, set aside the judgment on the cheques and granted unconditional leave to defend; the 2nd Defendant's appeal was dismissed.

Citation
PARKIE TRADING LTD. AND ANOTHER v. WONG TSUN TSUN THAI KITCHEN LTD. AND OTHERS
Parties
1st Plaintiff: PARKIE TRADING LIMITED; 2nd Plaintiff: LUI YU KAN; 1st Defendant: WONG TSUN TSUN THAI KITCHEN LIMITED; 2nd Defendant: CAN FINE LIMITED; 3rd Defendant: WONG PUI MAN
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
18 July 1997
Case Number
HCA1462/1996
Procedural Posture
Civil Appeal (summary Judgment; Contract and Negotiable Instruments) / Appeal From Master Woolley in Court of First Instance (order 14 Appeal)
Outcome
1st Defendant's appeal dismissed; 2nd Defendant's appeal dismissed; 3rd Defendant's appeal allowed in part — judgment on cheques set aside and 3rd Defendant given unconditional leave to defend; no interim stay of execution granted.
Legal Topics
Summary Judgment, Counterclaim, Stay of Execution, Independent Vs Transaction Set Off, Consideration for Cheque, Foreign Proceedings Affecting Domestic Execution
Source Language
EN
Contract Civil Procedure Negotiable Instruments Property (eviction) Conflict of Laws/set Off Summary Judgment Counterclaim Stay of Execution +3 more

Case Brief

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Parties

PARKIE TRADING LIMITED

1st Plaintiff

LUI YU KAN

2nd Plaintiff

WONG TSUN TSUN THAI KITCHEN LIMITED

1st Defendant

CAN FINE LIMITED

2nd Defendant

WONG PUI MAN

3rd Defendant

Procedural Posture

Civil Appeal (summary Judgment; Contract and Negotiable Instruments) / Appeal From Master Woolley in Court of First Instance (order 14 Appeal)

Legal Issues

  1. 1 Whether foreign proceedings alleging wrongful eviction constitute a counterclaim or set-off entitling defendants to unconditional leave to defend or a stay of execution
  2. 2 Whether an interim stay of execution pending the outcome of foreign proceedings should be granted
  3. 3 Whether the payee of dishonoured cheques (2nd Plaintiff) furnished consideration sufficient to sue on the cheques

Ratio Decidendi

The court held that the Guangzhou proceedings did not constitute a transaction set-off or counterclaim sufficient to defeat summary judgment or justify unconditional leave to defend; the 1st Defendant's appeal was dismissed and no interim stay of execution was granted. However the court found the 3rd Defendant's defence on the cheques raised an arguable point on consideration that could not be finally determined on summary judgment, allowed the 3rd Defendant's appeal, set aside the judgment on the cheques and granted unconditional leave to defend; the 2nd Defendant's appeal was dismissed.

Court Disposition

1st Defendant's appeal dismissed; 2nd Defendant's appeal dismissed; 3rd Defendant's appeal allowed in part — judgment on cheques set aside and 3rd Defendant given unconditional leave to defend; no interim stay of execution granted.

Orders

  • Dismissed appeal of 1st Defendant
  • Dismissed appeal of 2nd Defendant