The Hong Kong Chinese Bank Ltd v. Knitex Manufacturing & Co Ltd and Another
Read the full judgment text of HCA 2828/1977 on BabelCite. This High Court CFI judgment was delivered on 7 April 1978.
1. This is an appeal by the Plaintiff against the decision of the Registrar giving the 2nd Defendant unconditional leave to defend. The matters in question were argued before me and as I agree with the decision of the Registrar the less I say about the matters the better so I shall deal with only a very short point.
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HCA002828/1977
IN THE SUPREME COURT OF HONG KONG HIGH COURT
----------------- Coram: Zimmern, J. Date of Judgment: 7 April 1978 ----------------- DECISION ----------------- 1. This is an appeal by the Plaintiff against the decision of the Registrar giving the 2nd Defendant unconditional leave to defend. The matters in question were argued before me and as I agree with the decision of the Registrar the less I say about the matters the better so I shall deal with only a very short point. 2. The 2nd Defendant is sued by the Plaintiff Bank as a guarantor of the 1st Defendant company a customer of the Plaintiff Bank. By its amended statement of claim the Plaintiff alleges "the Plaintiff further provided the 1st Defendant from time to time with banking facilities in the form inter alia of advances made under letters of credit". Whatever that may mean I do not know but at any rate from the exhibits to the affirmations filed it would appear that the Plaintiff upon the instructions of the 1st Defendant company opened 3 letters of credit. The goods which of course were held by the Bank as security for the payment of the bills drawn under credits were released to the 1st Defendant on Trust Receipts and the 1st Defendant did not honour the bills. I think there is at least an issue which ought to be tried whether the three guarantees in writing covered such operations. Accordingly the appeal is dismissed costs in the Cause certificate for Counsel. 3. I want to deal with an argument raised by Mr. Lee for the Defendant. He says that the Plaintiff cannot rely on the amended statement of claim in that leave to amend was obtained, contrary to the rules of the Supreme Court, by an exparte application. The amendment was indeed obtained contrary to the rules but that is only an irregularity and not a nullity. If he had found this offensive he ought to have applied to have the amended statement of claim struck out. He did not do so and he cannot be heard to complain of an irregularity and argue the case on the merits at the same time. Representation: Mills-Owens (M.K. Lam & Co.) for the Plaintiff. Martin Lee (Woo & Woo) for the 2nd Defendant. |