Wong Kam-choi v. Winsome Enterprises Co
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CACV000155/1980 Cheque - drawn by Defendant - Order XIV - Defendant alleging illegal consideration - judge satisfied there was triable issue but of opinion that Defendant unlikely to succeed - conditional leave granted - on appeal held that defence was not a sham and unconditional leave should have been granted.
----------------- Coram: Huggins, Leonard and Cons, JJ.A. Date of Judgment: 11 November 1980 ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. This is an appeal against the decision of a judge in chambers granting leave to defend an action upon payment into court of the amount of the claim. He allowed an appeal against the decision of the Registrar. 2. The action was an action upon a cheque. It would appear that the Plaintiff obtained judgment in default of appearance and the Appellant then applied to set aside that judgment, he alleging that he had never been served with the writ. In an affidavit in support of that application to set aside the Appellant alleged unnecessarily that the cheque related to an agreement whereby some friends and relatives of the Appellant were to be conveyed from Hong Kong to Dominica and it was said that this cheque was in relation to the expenses of that passage. Two days after the judgment was set aside the Plaintiff took out a summons for judgment under Drder 14. In reply to that application the Appellant filed an affidavit in which, for the first time, he mentioned that there was illegality connected with this transaction of passages to Dominica. Illegality, of course, had been irrelevant to the previous proceeding to set aside the judgment but it is a matter for comment that he had in his first affidavit mentioned the contracts and accepted apparently that they were perfectly valid and enforceable. He now sets up that the contracts were illegal. He says that although the written contracts were for passages from Hong Kong to Dominica this was merely a sham - a front to cover the real agreement between the parties, which was that the Plaintiff should, to use the vernacular, smuggle these persons into the United States of America. They were ostensibly to travel to New York for the purpose of onward passage to Dominica but they were to be smuggled out of the Airport at New York into the vast expanse of the United States and there lost to the authorities. 3. The short point in the case is whether or not that assertion of fraud or illegality on the part of the Defendant was sufficient to justify leave to defend unconditionally. The learned judge was satisfied that there was a triable issue, but he took the view that it was an issue upon which the Appellant was unlikely to succeed. He said that for three reasons: first, that the Appellant was perhaps unlikely to be believed since he had to set up his own dishonesty in order to succeed: secondly, that the matter of illegality had not been raised in the very first affidavit, although, as I have mentioned, it was not directly relevant on that occasion: thirdly, he said that, while the story advanced by the Defendant was possibly true, it was an unlikely story. With respect to the learned judge, I think that he was in error in having regard to the likelihood of the defence's succeeding. The real test is not whether the defence was likely to succeed but whether the defence was shown to be a sham, In my view the evidence just does not go far enough to show that this was an impossible defence. The defence of illegality is sworn to, there is no evidence which shows that it is an impossible defence and I think that the Defendant was entitled to unconditional leave to defend. 4. I would therefore allow this appeal with costs here and below. Leonard, J.A.: 5. I agree, and, save to remark that this is not a case in which I feel counsel for the Appellant can be commended for his succinctness, I have nothing to add. Cons, J.A.: 6. I agree that the appeal should be allowed. 11th November 1980. |