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H.W. Turning Co Ltd v. Li Chi Ho

Read the full judgment text of HCA 83/1971 on BabelCite. This High Court CFI judgment.

1. This is an application by the plaintiffs for an order that the statement of defence and counterclaim filed by the defendant be struck out under Order 18 rule 19 of the Rules of the Supreme Court and under the inherent jurisdiction of the court on the ground that it discloses no reasonable defence and cause of action and that the plaintiffs be at liberty to enter judgment with damages to be assessed.

Case No.HCA 83/1971
Court
High Court CFI
Date—
Judge—
Case Document
100%Judiciary

HCA000083/1971

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 83 OF 1971

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BETWEEN
H.W. TURNING COMPANY LIMITED Plaintiff
and
LI CHI HO Defendant

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Coram: Mr. B.L. Jones, Assistant Registrar, in Chambers.

Date of Judgment: 14th day of December, 1971.

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DECISION

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1. This is an application by the plaintiffs for an order that the statement of defence and counterclaim filed by the defendant be struck out under Order 18 rule 19 of the Rules of the Supreme Court and under the inherent jurisdiction of the court on the ground that it discloses no reasonable defence and cause of action and that the plaintiffs be at liberty to enter judgment with damages to be assessed.

2. The plaintiffs' claim is for damages for breaches of covenant contained in a lease made on the 1st May 1969 between the Hang Seng Bank Limited, the mortgagee of the premises, the defendant as lessor and the plaintiffs as lessee. By the deed the defendant warranted to and covenanted with the plaintiffs that a safe and adequate flood-prevention device had been installed on the premises occupied by the plaintiffs which would prevent the premises from flooding at any time and from any cause whatsoever during the term of the lease.

3. The statement of defence alleges that the plaintiffs should have insured the premises but that they failed to do so for the period from the 1st April 1970 to the 16th September 1970 during which period on the 13th May 1970 flooding took place and counterclaims for damages for breach of the agreement.

4. Clause 4(e) of the lease provides as follows:-

' The Lessor shall insure the premises and the goods and chattels of the Lessee installed and/or placed therein in respect of its business in a sum of not less than $250,000.00 against all losses and/or damages to such goods and chattels as aforesaid caused by flooding and/or fire to the said premises and all insurance premia payable in respect of such insurance shall be paid by the Lessor and the Lessee in equal shares and the Lessor shall upon the demand of the Lessee produce the insurance policies and/or premium receipts for inspection by the Lessee.'

5. The defendant contends that the plaintiffs acted as agents for the defendant to pay the insurance premia which allegation is denied whereas the plaintiffs submit that liability under the covenant is absolute. However, the defendant has failed to provide any evidence to support this contention. Mr. Wei during the course of his argument applied for the statement of defence to be amended which he says is necessary because the plaintiffs have received insurance moneys from their insurance company. This aspect however is only relevant to the question of assessment of damages, but does not reveal a triable issue.

6. I do not consider that the defendant has shown a reasonable defence nor that they have a cause of action upon their counterclaim.

7. There will therefore be an order that the defence and counterclaim be struck out and judgment will be entered for the plaintiff with damages to be assessed and costs to be taxed. There will be a certificate for counsel.

8. Dated this the 14th day of December, 1971.

(B.L. Jones)
Assistant Registrar

Representation: