Wing Tai Drilling Contractors Co v. Gold Ram Engineering Development Ltd

DCCJ3408/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3408 OF 2005

______________________

BETWEEN

______________________

Coram : Deputy District Judge Wesley Wong in Chambers

Date of Hearing : 24 April 2006

Date of Judgment : 24 April 2006

______________________

J U D G M E N T

______________________

1.The plaintiff claims against the defendant for four cheques which the defendant issued to the plaintiff and all four cheques were dishonoured.

2.The case for the plaintiff is that the plaintiff was a subcontractor of the defendant and various sums were owed by the defendant to the plaintiff.  During a meeting in October 2004, the plaintiff informed the defendant that he was going to retire and asked the defendant to settle all the sums outstanding under the various subcontracts.  As a result, eight cheques were issued.  The defendant admitted in paragraph 22 of the affidavit that “in the conference discussion on the subcontract sums were held. References were then made to MWKM-5 and other subcontracts not being contained therein.  Agreement was reached on the respective sums of all outstanding subcontracts from 1988 to 2004 between the plaintiff and the defendant.  No pre-1998 subcontracts with the plaintiff were ever discussed in the conference.  It was also expressly confirmed by the plaintiff that no other subcontracts remained outstanding, hence the conference had dealt with all works done by the plaintiff.”

3.The plaintiff, in her affidavit, also confirmed that the said cheques were issued by the defendant to the plaintiff on or about 14 October 2004 to settle sums due and owing from the defendant to the plaintiff under various subcontracts.  There is no dispute that all eight cheques, including the four which were dishonoured, were to settle the outstanding sums under the subcontract.

4.The defendant’s case is that the cheques were given for no consideration and that the plaintiff needed to sign a memorandum.  The defendant said it was fraud and other irrelevant matters in the defence.

5.As the parties agreed that the cheques were paid for the outstanding sums I cannot see how the defendant can make out a defence that it was for total failure of consideration, hence the defendant’s case must fail and there will be judgment for the plaintiff in the sum of $877,403.46 claimed and interest at 1 per cent above prime from the various dates of dishonour until today.

6.Costs to the plaintiff.  Certificate for counsel.

Miss Sara Tong, instructed by Messrs Leung & Lau, for the Plaintiff

Mr Peter K.C. Leung, instructed by Messrs Chan, Leung & Co., for the Defendant