Hong Kong Case Law: Decisions & Judgments

Topic

Partial failure of consideration

Legal area

Court

29 Oct 2021

LUK WAI HO v. FANG YU

Citation

[2021] HKDC 1345
Court

District Court
Case number

DCCJ4744/2019

Defendant demonstrated an arguable and believable defence under s21(2)(b) BOEO that the cheque was delivered for a special purpose and not to transfer property; credibility issues and disputed factual matters (including timing, IOU inconsistencies and amount lent) require trial; partial failure and illegality defences were not presently established; therefore summary judgment was inappropriate and the plaintiff's appeal is dismissed.
12 Nov 2015

HO PO KI v. LAI KING HEI

Citation

HO PO KI v. LAI KING HEI
Court

District Court
Case number

DCCJ1914/2014

The defendant failed to discharge the burden of showing a real or bona fide defence to the claim on the dishonoured cheque; the cheque represented payment under a binding agreement rather than a mere guarantee or conditional instrument, and partial failure of consideration did not apply; summary judgment for the plaintiff was therefore appropriate.
30 Aug 2006

LAM TAI KWAN v. LO WAI KIT

Citation

LAM TAI KWAN v. LO WAI KIT
Court

Court of First Instance
Case number

HCA2581/2005

The cheques were regular on their face and the defendant failed to establish fraud or total failure of consideration or any reasonable defence; extrinsic evidence was not admissible to vary the cheques on the basis of a partial failure of consideration, therefore the appeal was dismissed and the defendant liable on the cheques subject to costs order.
27 Dec 2000

Melrose Clothing Co. Ltd. v. China Garment (Far East) Ltd.

Citation

Melrose Clothing Co. Ltd. v. China Garment (Far East) Ltd.
Court

Court of First Instance
Case number

HCA6760/2000

The court refused to extend the defences to a dishonoured cheque to include innocent misrepresentation absent clear authoritative support and real loss, but admitted fresh evidence relevant to a compromise agreement; the fresh evidence created a genuine triable issue as to settlement for two invoices and deductions for others, so the master's summary judgment was set aside and unconditional leave to defend the entire action was granted.
7 Apr 1997

SIMS TRADING CO LTD v. POON YEE PING STELLA t/a SUNSHINE AND CO

Citation

SIMS TRADING CO LTD v. POON YEE PING STELLA t/a SUNSHINE AND CO
Court

Court of First Instance
Case number

HCA11449/1996

The defendant's factual allegation of a package deal is not credible on the evidence; independently, even if believed there is no sufficient nexus between that alleged package deal and the two cheques sued on and the asserted losses are unliquidated damages rather than an ascertainable pro tanto deduction; therefore summary judgment for the plaintiff was justified.
3 Jun 1996

GOLDEN CITY ELECTRONIC INDUSTRIES AND ANOTHER v. RCR ELECTRONICS MANUFACTURING LTD

Citation

GOLDEN CITY ELECTRONIC INDUSTRIES AND ANOTHER v. RCR ELECTRONICS MANUFACTURING LTD
Court

Court of First Instance
Case number

HCCW258/1996

The respondent failed to adduce sufficient, precise evidence of a bona fide dispute or of delivery of the cheque to a third party; endorsement alone was insufficient to establish transfer; the cheque debt was enforceable and any counterclaim for defective goods should be pursued separately, therefore the strike-out application was refused.
9 Aug 1985

LEE WING FUNG v. LEE WING CHIU

Citation

LEE WING FUNG v. LEE WING CHIU
Court

District Court
Case number

DCCJ3357/1985

Set-off and counterclaims unrelated or unliquidated cannot defeat an action on a bill of exchange in the absence of fraud, invalidity or an ascertained partial failure of consideration; a District Judge may enter summary judgment under Rule 27 when, after hearing and investigation, no reasonable defence remains; however, equitable relief in the form of a stay of execution may be granted for a specific portion ($25,000) held in trust for a third party to allow pursuit of related High Court proceedings.
13 Feb 1981

UNITED MERCHANTS FINANCE LTD v. YIM CHEUK NAM AND ANOTHER

Citation

UNITED MERCHANTS FINANCE LTD v. YIM CHEUK NAM AND ANOTHER
Court

Court of First Instance
Case number

HCA4471/1980

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.
13 Feb 1981

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

Citation

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

Court of First Instance
Case number

HCA6376/1980

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.