UNITED MERCHANTS FINANCE LTD v. YIM CHEUK NAM AND ANOTHER

UNITED MERCHANTS FINANCE LTD v. YIM CHEUK NAM AND ANOTHER

The High Court dismissed both appeals and upheld the Registrar's decisions because the defendants failed to prove exceptional circumstances to justify a stay or set-off: alleged defects did not produce a liquidated pro tanto deduction, returned goods were not linked to specific cheques nor pleaded as a defence, and the Registrar had not erred in principle or exercise of discretion; payment to the Third Party on the endorsed cheque should not be interfered with.

Citation
UNITED MERCHANTS FINANCE LTD v. YIM CHEUK NAM AND ANOTHER
Parties
Plaintiff (action No. 6376) / Third Party (action No. 4471): UNITED MERCHANTS FINANCE LIMITED; Defendants: YIM CHEUK NAM; LIANG CHANG; HUI SUI TONG; HO KIN YAU; CHAN MING KWONG; NG KWOK KUEN trading as KAM FUNG TEXTILE COMPANY; Plaintiff (action No. 4471) / Third Party (action No. 6376): KIM SHING PIECE GOODS COMPANY (CHEUNG NGAI SING trading as KIM SHING PIECE GOODS COMPANY)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
13 February 1981
Case Number
HCA4471/1980
Procedural Posture
Civil High Court (summary Judgment/third Party Proceedings on Dishonoured Cheques) / Appeal From Registrar's Decisions (heard De Novo Before High Court Judge)
Outcome
Both appeals dismissed and Registrar's decisions affirmed.
Legal Topics
Summary Judgment (o.14), Partial Failure of Consideration, Dishonoured Cheques, Stay of Execution, Third Party Proceedings, Costs
Source Language
EN
Contract Commercial Law Civil Procedure Negotiable Instruments (cheques) Summary Judgment (o.14) Partial Failure of Consideration Dishonoured Cheques Stay of Execution +2 more

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Parties

UNITED MERCHANTS FINANCE LIMITED

Plaintiff (action No. 6376) / Third Party (action No. 4471)

YIM CHEUK NAM; LIANG CHANG; HUI SUI TONG; HO KIN YAU; CHAN MING KWONG; NG KWOK KUEN trading as KAM FUNG TEXTILE COMPANY

Defendants

KIM SHING PIECE GOODS COMPANY (CHEUNG NGAI SING trading as KIM SHING PIECE GOODS COMPANY)

Plaintiff (action No. 4471) / Third Party (action No. 6376)

Procedural Posture

Civil High Court (summary Judgment/third Party Proceedings on Dishonoured Cheques) / Appeal From Registrar's Decisions (heard De Novo Before High Court Judge)

Legal Issues

  1. 1 Whether summary judgment (O.14) should be granted on dishonoured cheques
  2. 2 Whether a stay of execution should be granted in exceptional circumstances
  3. 3 Whether partial failure of consideration can be relied upon as a pro tanto defence against cheques where damages are unliquidated

Ratio Decidendi

The High Court dismissed both appeals and upheld the Registrar's decisions because the defendants failed to prove exceptional circumstances to justify a stay or set-off: alleged defects did not produce a liquidated pro tanto deduction, returned goods were not linked to specific cheques nor pleaded as a defence, and the Registrar had not erred in principle or exercise of discretion; payment to the Third Party on the endorsed cheque should not be interfered with.

Court Disposition

Both appeals dismissed and Registrar's decisions affirmed.

Orders

  • Both appeals against the Registrar's decisions dismissed with costs.
  • Payment to the Third Party on the cheque in Action No. 4471 shall not be interfered with; no third party directions granted.