Samwa Co Ltd v. Lau Cho Cheong

HCA000671/1982

BETWEEN: -

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Coram: The Honourable Mr. Justice Jones in Chambers

Date of Hearing: 29th November 1983

Date of delivery of judgment: 29th November 1983

Mr. P. Chan (Liu, Chan & Lam) for Plaintiff.

Mr. B. Chain (H. H. Lau & Co.) far Defendant.

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JUDGMENT

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1. This is an appeal by the defendants from a decision of Master Betts on the 31st October 1983 when.he.ordered that judgment be entered for the plaintiffs for US$249,027.16, interest and costs.

2. The defendants are the personal representatives of the estate of Charlie C.C. Lau (deceased) who traded as Lau Film Company. The deceased died on the 2nd January 1982.

3. By an agreement dated the 10th January 1973 the deceased was appointed by the plaintiff to be their agent for the purchase and sale of motion films in Hong Kong. The plaintiffs' claim is in respect of profits accountable by the deceased which was acknowledged 'in a letter dated the 18th' February 1977.

4. It is significant to observe that the writ was issued on the 28th January 1983 less than a month after the deceased's death. Mr. Chain who appeared for the defendants concedes that there is no defence in law, but contends that under the second limb of Order 14 rule 3(1) there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial.

5. The deceased was the sole proprietor of his firm, but his sister Lau Sui Ying was also actively engaged in the management of the business.

6. Mr. Chain submits that the defendants should have an opportunity to investigate whether the amount claimed is due particularly having regard to the long lapse of time, and the prompt issue of the writ shortly after the deceased's death. In support of his argument he cited Miles v. Bull (1968) 1 Q.B. 258 where at p. 265 Megarry J. in referring to the wording of Order 14 rule 3(l) said:-

"These last words seem to me to be very wide. They also seem to me to have special significance where, as here, most or all of the relevant facts are under the control of the plaintiff, and the defendant would have to seek to elicit by discovery, interrogatories and cross-examination those which will aid her. If the defendant cannot point to a specific issue which ought to be tried but nevertheless satisfies the court that there are circumstances that ought' to be investigated, then I think that those concluding words are invoked. There are cases when the plaintiff ought to be put to strict proof of his claim, and exposed to the full investigation possible at a trial; and in such cases it would, in my judgment, be wrong to enter summary judgment for the plaintiff.".

Mr. Chan for the Plaintiff submits that Miss Lau would have had full knowledge of the debt for she had carried on the deceased's business since his death. The deceased obviously had full knowledge of the facts, but his knowledge was not necessarily imputed to Miss Lau nor is it to be assumed that she is aware of the full situation now. In my opinion the personal representatives are entitled to have the circumstances investigated and the plaintiff should be put to strict proof. If at a later date it became clear that the debt has not been paid the defendants would be well advised to consent to judgment.

7. As a result the appeal will be allowed and the order of the Master will be set aside. The defendants will be granted unconditional leave to defend. Defence to be filed in 14 days reply thereafter in 7 days. Discovery of documents on oath 14 days after the close of pleadings inspection 7 days thereafter to be set down before a judge without a jury 30 days after close of pleadings. Costs before the Master in the cause. Costs of appeal to the defendants.

Representation:

Mr. P. Chan (Liu, Chan & Lam) for Plaintiff.

Mr. B. Chain (H. H. Lau & Co.) far Defendant.