Gold Channel Holdings Ltd. v. Lapagayo (Asia Pacific) Ltd.

DCCJ022360/2001

DCCJ22360/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 22360 OF 2001

--------------------

---------------------

Coram: His Honour Judge Wong in Chambers

Date of Hearing: 9 May 2002

Date of Handing Down Judgment: 16 May 2002

____________

JUDGMENT

____________

1.This is an application under O14 for summary judgment in respect of a cheque drawn by the Defendant on Chekiang First Bank Limited in the sum of HK$229,499.10 in favour of the Plaintiff maturing on 1/12/01. The said Cheque was dishonoured upon presentation for payment.

2.Miss Po counsel for the Defendant submitted that this summons should be dismissed as it had been improperly instituted. The very issue in the present action had been raised by the Plaintiff in DCA 20882/2001. The Defendant (Plaintiff in that action) only claimed for damages for breach of contract and 2 liquidated sums for materials sold to the Defendant (Plaintiff in this action). The Plaintiff (Defendant in that action) counter-claimed for damages to be assessed. That writ of summons was issued on 23 November 2001. Miss Po submitted that the Plaintiff ought to have counter-claimed for the dishonoured cheque in that action. Since they had not it is an abuse of the Court's process.

3.If it were an abuse of the Court's process then the Defendant should have taken out a summons to strike out this action under O18 and 19.

4.S.35 of the Limitation Ordinance Cap. 347 states:

"(1) For the purposes of this Ordinance, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced -

(a) ..............

(b) in the case of any other new claim on the same date as the original action.

(2) In this section a new claim means any claim by way of set-off or counter claim and any claim involving either

(a) the addition or substitution of a new cause of action; .......

................. "

5.The cheuqe matured on 1 December 2001. So the course of action accrued only after 1 December 2001 when presented for payment and was dishonoured. This course of action arose after the issuance of the writ in DCCA 20882/2001. So it should be a separate action.

6.The second limb of Miss Po's submission is that the Defendant has liquidated cross claim. O14/5/15 states:

" In an action on a dishonoured bill of exchange or cheque or promissory note, a wholly different practice prevails so far as setting up the defence of set-off or counterclaim is concerned. In such an action, save in exceptional circumstances or upon strong grounds, the Defendant will not be allowed to set up a set-off or counterclaim for damages for breach of some other contract ..... and the Plaintiff is entitled to judgment for the amount of his claim without a stay of execution."

In any event the liquidated claim is one of the subject matters claimed by the Defendant in action No. 20882/2002. It should not be litigated again in another action.

7.The other point submitted by Miss Po is that the cheque was conditional. It is quite clear and undisputed that the cheque was for payment of goods sold and delivered to the Defendant. Consideration has been given for the cheque. There is no allegation of any fraud.

8.For reasons above I am of the view that there is no defence to this action and I give judgment for the Plaintiff in the sum of $229,499.10 with interests from 1 December 2001 until judgment and thereafter at judgment rate until payment. Order nisi: costs to the Plaintiff.

Representation:

Mr. NG Man Kin of Messrs. Kwok, Ng & Chan for Plaintiff.

Miss PO Wing Kay instructed by Messrs. Raymond Tong & Co. for Defendant.