WONG MAN HONG AND ANOTHER v. POON KIN CHIU AND ANOTHER

WONG MAN HONG AND ANOTHER v. POON KIN CHIU AND ANOTHER

Defendants failed to show any triable defence: there was insufficient evidence of an enforceable condition preventing presentation of the cheque beyond 28 August, time for payment of the deposit was of the essence and the dishonoured cheque constituted a breach entitling plaintiffs to forfeit and recover the $80,000, and the subsequent negotiations did not form a binding new agreement nor operate as a legal waiver; summary judgment therefore granted.

Citation
WONG MAN HONG AND ANOTHER v. POON KIN CHIU AND ANOTHER
Parties
1st Plaintiff: WONG MAN HONG; 2nd Plaintiff: CHAN SAU FAN; 1st Defendant: POON KIN CHIU; 2nd Defendant: TSE WAI MING
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
8 May 2008
Case Number
DCCJ5363/2006
Procedural Posture
Civil Sale of Land / Contract / Summary Judgment Hearing and Judgment
Outcome
Summary judgment entered for plaintiffs
Legal Topics
Summary Judgment, Forfeiture of Deposit, Dishonoured Cheque, Time of the Essence, Waiver, Triable Defence
Source Language
EN
Contract Property / Conveyancing Civil Procedure Summary Judgment Forfeiture of Deposit Dishonoured Cheque Time of the Essence Waiver +1 more

Case Brief

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Parties

WONG MAN HONG

1st Plaintiff

CHAN SAU FAN

2nd Plaintiff

POON KIN CHIU

1st Defendant

TSE WAI MING

2nd Defendant

Procedural Posture

Civil Sale of Land / Contract / Summary Judgment Hearing and Judgment

Legal Issues

  1. 1 Whether defendants established a triable defence to summary judgment
  2. 2 Whether cheque was delivered subject to a condition as to time of presentation
  3. 3 Whether late payment or dishonour of deposit constituted fundamental breach permitting forfeiture

Ratio Decidendi

Defendants failed to show any triable defence: there was insufficient evidence of an enforceable condition preventing presentation of the cheque beyond 28 August, time for payment of the deposit was of the essence and the dishonoured cheque constituted a breach entitling plaintiffs to forfeit and recover the $80,000, and the subsequent negotiations did not form a binding new agreement nor operate as a legal waiver; summary judgment therefore granted.

Court Disposition

Summary judgment entered for plaintiffs

Orders

  • Summary judgment for the plaintiffs for HKD 80000
  • Interest on HKD 80000 at 1% above the HSBC prime rate from date of writ to date of judgment and thereafter at judgment rate until payment in full