Chow Yue Kam v. Tan Ban Swee t/a Fortune International Enterprises
Read the full judgment text of HCA 242/1971 on BabelCite. This High Court CFI judgment.
1. This is an application by the defendant to set aside a judgment obtained in default of defence on the 6th April 1971.
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HCA000242/1971 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 242 OF 1971 -----------------
----------------- Coram: Mr. B.L. Jones, Assistant Registrar, in Chambers. Date of Judgment: 9th day of October, 1971. ----------------- DECISION ----------------- 1. This is an application by the defendant to set aside a judgment obtained in default of defence on the 6th April 1971. 2. A writ of summons was filed on the 10th February 1971 claiming the sum of $40,500 in respect of a dishonoured cheque dated the 14th September 1970 drawn on the Hang Seng Bank Ltd. The cheque was made payable in cash and the Plaintiff claims the amount due as a holder in due course. 3. An appearance was entered by the defendant in person on the 22nd February 1971 but no defence was filed. 4. In his affirmation in support of the application the defendant states that he had arranged to purchase some goods on behalf of a friend in Indonesia but as a result of the subsequent cancellation of the order he became financially embarrassed. The defendant therefore borrowed $30,000 from a Mr. Chan Woon Seen with interest at the rate of 10% per month. It was arranged that the goods purchased by the defendant would be kept by Mr. Chan until the debt was repaid. 5. Cheques were issued by the defendant for repayment of the loan which were given by him to Mr. Chan who agreed to keep them until the capital and interest had been paid. Subsequently the defendant issued the cheque for the amount of the claim which includes arrears of interest unpaid which eventually came into the possession of the Plaintiff. 6. The defendant maintains that he did not file a defence as he was under the impression that he would receive another document calling upon him to do so. 7. The defendant does not know the Plaintiff nor has he had any dealing with her. In a supplementary affirmation the defendant alleges that Mr. Chan is an unlicensed money lender. 8. The Plaintiff filed an affirmation in reply which inter alia avers that the defendant has no defence to the action and that the cheque was negotiated to her for value in September 1970 by a Mr. To Ming. 9. In Fung Kau v. Lam Yau-cheong 1967 H.K.L.R. where unconditional leave was given to the defendant Rigby, J. at page 158 said
10. Mr. Tang for the Plaintiff contended that no evidence had been produced to show that the cheque was tainted with illegality nor that it was a moneylending transaction. Further Mr. Tang suggested that if leave is granted conditions should be attached. 11. However, it is unnecessary for the defendant to produce the evidence in support of his contention that there is a defence upon the merits but merely to show that there is a triable issue. 12. It is abundantly clear that a triable issue has been shown from the affirmation of the defendant which I consider merits a proper trial without imposing conditions that might prevent him from raising his defence. 13. Accordingly the judgment of the 6th April 1971 will be set aside and the defendant is given unconditional leave to defend. The defence will be filed within 14 days and a reply, if any, within 14 days thereafter and mutual discovery 14 days after the close of pleadings. 14. The costs thrown away as a result of this application will be paid by the defendant in any event. There will be a certificate for counsel. 15. Dated this the 9th day of October, 1971.
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