Leung Ting v. Law Wing Shum

HCA006943/1981

BETWEEN

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Coram: Hon. LIU, J. in Chambers

Date: 23 March 1982

On appeal from Master's Order dated 1st March, 1982.

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JUDGMENT

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1. This is an appeal from the Order of the learned Master given on the 1st March, 1982 whereby the plaintiff was granted judgment against the defendant as claimed i.e. in the sum of $39,000 with costs.

2. The plaintiff's claim is on three cheques dated respectively 5th February, 21st February and 15th May, all in 1979 for the respective sums of $20,000, $3,000 and $16,000, making a total of $39,000. It is not a matter in dispute that the cheques were all dishonoured upon presentation for payment. Notice of dishonour is also not a matter controverted.

3. This action was commenced on the 8th October, 1981. On the 11th January, 1982, solicitors for the plaintiff gave consent to the defendant's Defence to be filed out of time. On the next day, 12th January, 1982, the Defence was filed and duly served on the plaintiff's solicitors. Subsequent to the service of the Defence out of time, on the 19th January, 1982 the plaintiff applied under Order 14 for summary judgment. Much criticism was sought to be levelled at the Defence filed on behalf of the defendant. Whilst it was recognized that the plaintiff's application was not an application for striking out a pleading, it was submitted that on an Order 14 application, regard should be had to as well affidavit evidence as the Defence already filed.

4. The Defence contains an admission to $20,000 being part of the plaintiff's claim and joins issue with the balance thereof. The essence of the allegations in the Defence is that all three cheques were issued by the defendant for the payment of one single loan in the sum of $20,000. There would appear to be room for improvement in draftsmanship, but the basic allegation has, in my view, been sufficiently pleaded.

5. Further, by an affirmation the defendant deposed to facts, which as Mrs. Bokhary indicated, had not been specifically traversed. A denial in response to the defendant's affirmation could, in any case, offer little assistance in the circumstances disclosed, save and except that conditional leave to defend might be more readily supported.

6. The explanation offered by the defendant was that after a $20,000 loan against his first cheque, he requested the plaintiff to withhold the presentation thereof for payment, but his request was rejected. Some time after the dishonour of his first cheque in the month of February, the defendant implored the plaintiff not to take action against him and offered a cheque for $3,000, the second cheque, as part payment for the original debt. The second cheque was likewise dishonoured. The second cheque was dated the 21st of February, 1979. In mid-March, the defendant made a further attempt to pacify the plaintiff and allegedly offered a further cheque for $16,000 as part payment of the original loan, which was also accepted. It was again subsequently dishonoured.

7. On the defendant's assertion, plain common-sense dictates that no number of cheques could found a good cause of action for over $20,000 against him as an alleged debtor of merely that very sum. The defendant's allegations on the facts deposed to raise the issue as to whether there was no or total failure of consideration for the amounts on these three cheques in excess of $20,000. On the defendant's allegations, the plaintiff is not entitled to and cannot recover more than his alleged loan of $20,000, whatever the amounts on the cheques. The defendant, in my view, has set up a fair probability of a defence, and leave to defend as to the balance of the plaintiff's claim in this action should, in my view, be granted.

8. There are no special circumstances in this case that would merit the imposition of any condition on the leave so granted. It remains for me to order (1) that the appeal be allowed, (2) that to the extent of $19,000 both the Master's Order given on the 1st March, 1982 and the judgment entered in consequence thereof be set aside, (3) that costs awarded by the learned Master be likewise set aside; so be the costs in the consequential judgment, (4) that the defendant to have costs of this appeal and costs before the Master, (5) that costs in the judgment be reserved for the trial judge; for the removal of doubt, if any, the plaintiff be at liberty to enter judgment for $20,000 with costs reserved for the trial judge, lastly, and (6) that the defendant do have unconditional leave to defend the balance of the plaintiff's claim. My order is so framed as to enable the defendant to pursue his allegations that under no circumstances should the plaintiff be allowed to succeed in excess of his actual loan of $20,000 on the combination of any two of the three cheques or at all.

Representation:

Mr. Geoffrey Ma instructed by Messrs. Yu, Tsang & Loong for the Plaintiff.

Mrs. Bokhary instructed by Messrs. Chan & Chan for the Defendant/Appellant.