CALDER BUILDING PRODUCTS CO LTD v. EVERGREEN (FIC) CONTRACTING LTD AND ANOTHER

DCCJ 5625/2004

IN THE DISTICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5625 OF 2004

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BETWEEN

  CALDER BUILDING PRODUCTS COMPANY LIMITED Plaintiff
  and  
  EVERGREEN (FIC) CONTRACTING LIMITED 1st Defendant
  EVERGREEN (FIC) LTD 2nd Defendant

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Corum: Master J Ko in Chambers

Date of Hearing: 8 March 2005

Date of Delivery of Judgment: 8 March 2005

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J U D G M E N T

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1. This is the plaintiff’s application for summary judgment against the 2nd defendant only. The 2nd defendant’s main defence isone of total failure of consideration. By reason of section 28 of the Bills of Exchange Ordinance, the 2nd defendant has very fairly accepted that this defence will rise or fall with the 2nd defendant’s allegation that therehas been a mistake in issuing the cheques – and I emphasise “cheque” – in question.

2. I find the 2nd defendant’s allegation on mistake in issuance of these two cheques incredible because if that had been true,it wouldinvolve a threefold mistake involving three independent people on three different dates. The first mistake would be by Lee Yuet-fanmaking out the cheque for $170,000 on 30 July 2004 and by affixing D2’s chop on it. The second mistake involved Wat Sau-ying makingout the cheque for $5,349 on 28 August 2004 by again affixing D2’s chop thereon. The third mistake would be by the 1stdefendant, whoever that may be, amending the date of the cheque for $170,000 without noting the alleged mistake.

3. The burden is on the 2nd defendant to satisfy me that it has a defence, and despite – and I must add – the most able submission fromthe 2nd defendant’s counsel and his handling and presentation of the 2nd defendant’s case, I am not satisfied thatthe 2nd defendant has any defence to the plaintiff’s claim herein.

4. So I grant final judgment in favour of the plaintiff against the 2nd defendant in the sum of $170,000, with interest thereon from30 September 2004 to payment on judgment rate together with costs.

  J Ko
Master

Mr Edward Chan, of Messrs Chan, Wong & Lam, for the Plaintiff

Mr Jenkin Suen, instructed by Y L Yeung & Co., for both Defendants