Hong Kong Case Law: Decisions & Judgments

Topic

Conditional leave

Legal area

Court

29 Oct 2021

TANG KWOK PANG v. KOT SEE FOR

Citation

[2021] HKCFA 36
Court

Court of Final Appeal
Case number

FAMV255/2021

Conditional leave granted by the Appeal Committee did not create a subsisting final appeal because applicant failed to comply with rule 13 to obtain final leave; accordingly the conditional grant was rescinded and the Notice of Motion for leave to appeal dismissed; the court's implied jurisdiction permits the security paid into court to be applied to compensate the respondent for costs incurred in defending the abortive leave application; the stay of execution granted with conditional leave is lifted upon dismissal; the sealed affirmation is to be unsealed and served subject to a confidential…
5 Mar 2020

YU KWING CHUEN v. HUANG JIFEN

Citation

[2020] HKCFI 367
Court

Court of First Instance
Case number

HCA21/2018

Having taken a broad view of the evidence and given the absence of documentary proof of the alleged running account, the messaging evidence and the defendant's willingness to pay the disputed sum into court, the court found there was a sufficient arguable defence of failure of consideration to refuse immediate summary judgment and granted conditional leave to defend provided the full sum of HK$6,000,000 be paid into court (HK$3,100,000 already paid; balance HK$2,900,000 to be paid within 28 days).
17 Oct 2013

BOLD SHINE INVESTMENT LTD v. ZHENG DELI

Citation

BOLD SHINE INVESTMENT LTD v. ZHENG DELI
Court

Court of First Instance
Case number

HCA1676/2011

Because the plaintiff's own evidence revealed triable issues after service of the defendant's opposition and in light of the defendant's open offer, the court exercised its discretion under Order 62 r5 to vary the Costs Order Nisi: costs of the Amended Summons up to and including 7 March 2013 are to be costs in the cause; costs thereafter are to be paid by the plaintiff to the defendant to be taxed forthwith if not agreed. The Condition prohibiting disposal of the Property was intended to preserve the status quo and does not prohibit residing in or renting out the Property.
5 Jul 2007

E2-CAPITAL (HOLDINGS) LTD v. TO KIN KEUNG

Citation

E2-CAPITAL (HOLDINGS) LTD v. TO KIN KEUNG
Court

Court of First Instance
Case number

HCA338/2006

Service by post to the last known address given by the defendant was regular; the defendant had sufficient knowledge of the proceedings and in effect evaded service; the defences of duress and performance did not show a real prospect of success on the affidavits before the court; fresh evidence applications failed the Ladd v Marshall criteria; accordingly the appeal was dismissed and conditional leave to set aside judgment required payment of the full claim into court and specific disclosure of residence and assets.
21 Jul 2005

MYRIAD ELECTRONICS LTD v. ENITY TECHNOLOGY LTD

Citation

MYRIAD ELECTRONICS LTD v. ENITY TECHNOLOGY LTD
Court

Court of Appeal
Case number

CACV132/2005

The appeal was dismissed because the Court upheld the judge's exercise of discretion: the proposed set-offs were at best weak or 'shadowy' (poaching and Proposition 65 claims lacked necessary evidence and legal basis), implied terms did not cover compliance with specific foreign labelling law absent clear notice or reliance, and the defendant failed to discharge the burden of proving inability to comply with the payment condition when given the opportunity in court and thereafter provided only vague, unsubstantiated evidence.
21 Jul 2003

UNIFRUIT LTD v. CAPITAL YEARS INTERNATIONAL LTD

Citation

UNIFRUIT LTD v. CAPITAL YEARS INTERNATIONAL LTD
Court

District Court
Case number

DCCJ5798/2002

Leave to appeal was granted unconditionally because the judge could not conclude the defendant had no realistic prospect of success; however the defendant's unjust enrichment argument was not sufficiently strong to justify a stay of execution or payment of the judgment sum into court; costs orders were made accordingly.
3 Apr 2003

CAPATEL LTD v. KONG KONG PING, GLADYS t/a EASY TELECOM CO

Citation

CAPATEL LTD v. KONG KONG PING, GLADYS t/a EASY TELECOM CO
Court

Court of First Instance
Case number

HCA3415/2002

There existed triable issues on the identity of the contracting party and on alleged breaches (including sale by sample and merchantability) such that summary judgment was inappropriate; because the Defendant could not meet any conditional payment and conditional leave would effectively deprive Plaintiff of recovery, the proper exercise of discretion required granting unconditional leave to defend and allowing the appeal.
18 Dec 2001

Tim Lee Frozen Food Co. v. Leung Sau-ling

Citation

Tim Lee Frozen Food Co. v. Leung Sau-ling
Court

District Court
Case number

DCCJ13126/2001

Defendant's pleaded denial was not sufficiently supported by credible evidence; the preponderance of evidence (continuity of trading name/activity, defendant's presence at premises, personal cheques and payments) made her defence shadowy rather than bona fide, so conditional leave to defend was appropriate; appeal allowed, Master's order set aside and defendant ordered to pay $40,000 into court within 42 days as condition of leave.
16 May 2000

DESCO (HONG KONG) LTD. v. WAH SING JEWELLERY CO. LTD.

Citation

DESCO (HONG KONG) LTD. v. WAH SING JEWELLERY CO. LTD.
Court

Court of First Instance
Case number

HCA19362/1999

Judgment was entered for the cheque amounts because the defendant produced no credible evidence of conditional delivery and the statutory presumption under s22(3) applied; leave to defend was granted only in respect of the unpaid balance and made conditional on payment of the cheque sum and security of HK$150,000 within 14 days to ensure the defence is not nugatory.
21 Jun 1999

HEUNG CHIN WAI v. CHAN KWOK YIM AND OTHERS

Citation

HEUNG CHIN WAI v. CHAN KWOK YIM AND OTHERS
Court

Court of First Instance
Case number

HCA21806/1998

The Court allowed the defendants' appeal, set aside the Master’s conditional order and dismissed the plaintiff's Order 14 application and cross‑appeal because the defendants' affidavits disclosed credible, non‑frivolous triable issues (including ledger evidence that the $4.9 million was disbursed) making summary judgment inappropriate and precluding a finding that the fund remained in the defendants' hands.