CHEUNG NGAI SING t/a KIM SHING PIECE GOODS CO v. YIM CHEUK NAM

CHEUNG NGAI SING t/a KIM SHING PIECE GOODS CO v. YIM CHEUK NAM

The Registrar did not err in principle or in exercise of discretion; defendants failed to establish exceptional circumstances to warrant a stay or reduction of judgment as the alleged partial failure of consideration was not shown to produce a liquidated, ascertained amount tied to the cheques and returned goods were not pleaded as a defence to the goods sold and delivered claim; payment to the third party on the endorsed cheque should not be interfered with.

Citation
CHEUNG NGAI SING t/a KIM SHING PIECE GOODS CO v. YIM CHEUK NAM
Parties
Plaintiff (action No. 6376): Cheung Ngai Sing trading as Kim Shing Piece Goods Company; Plaintiff (action No. 4471); Third Party (action No. 6376): United Merchants Finance Limited; Defendants (both Actions): Yim Cheuk Nam; Liang Chang; Hui Sui Tong; Ho Kin Yau; Chan Ming Kwong; Ng Kwok Kuen trading as Kam Fung Textile Company
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
13 February 1981
Case Number
HCA6376/1980
Procedural Posture
Civil: Summary Judgment on Dishonoured Cheques/third Party Proceedings / Appeal From Registrar's Decisions on Order 14 Proceedings and Third Party Summons (heard in Chambers)
Outcome
Both appeals dismissed
Legal Topics
Summary Judgment (order 14), Partial Failure of Consideration, Stay of Execution, Endorsee Liability, Third Party Directions
Source Language
EN
Civil Procedure Negotiable Instruments Contract Law Summary Judgment (order 14) Partial Failure of Consideration Stay of Execution Endorsee Liability Third Party Directions

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Parties

Cheung Ngai Sing trading as Kim Shing Piece Goods Company

Plaintiff (action No. 6376)

United Merchants Finance Limited

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

Yim Cheuk Nam; Liang Chang; Hui Sui Tong; Ho Kin Yau; Chan Ming Kwong; Ng Kwok Kuen trading as Kam Fung Textile Company

Defendants (both Actions)

Procedural Posture

Civil: Summary Judgment on Dishonoured Cheques/third Party Proceedings / Appeal From Registrar's Decisions on Order 14 Proceedings and Third Party Summons (heard in Chambers)

Legal Issues

  1. 1 Whether Registrar erred in granting leave to sign judgment on dishonoured cheques under Order 14
  2. 2 Whether stay of execution should be granted for alleged partial failure of consideration and counterclaim
  3. 3 Whether value of returned goods can be set off against specific cheque liabilities

Ratio Decidendi

The Registrar did not err in principle or in exercise of discretion; defendants failed to establish exceptional circumstances to warrant a stay or reduction of judgment as the alleged partial failure of consideration was not shown to produce a liquidated, ascertained amount tied to the cheques and returned goods were not pleaded as a defence to the goods sold and delivered claim; payment to the third party on the endorsed cheque should not be interfered with.

Court Disposition

Both appeals dismissed

Orders

  • Both appeals against the Registrar's decisions are dismissed with costs
  • No interference with payment to the Third Party on the cheque in the second action; no Third Party directions ordered