LAM MAN KING v. LEE KIEN SUM AND ANOTHER

IN THE COURT APPEAL

1987 No. 12
(Civil)

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JUDGMENT

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Kempster, J.A.:

1. This is the judgment of the Court on an appeal by a plaintiff from a judgment of Judge Wilson given in Kowloon District Court on 26th September 1986 dismissing his claim against the defendants for HK$ 21,840 with interest as drawers of a dishonoured cheque for that sum dated and presented on 17th July 1985. On the same occasion the Judge dismissed the defendants' counterclaim for damages for non-delivery of goods. There is no appeal in that regard.

2. It is necessary at the outset to deal with the procedural point that the plaintiff is described as Kith Mutual Benefits Company. We are told that this is a misnomer, in the sense that no such corporation or firm exists, and that, the proper description would be "Lam Man King carrying on business as Kith Mutual Benefits Company. Mr. Spicer, on his behalf, wishes to, and to succeed must, put the matter in order. Subject to a qualification which will be explained shortly we allow the amendment and the name of the plaintiff on the writ will be regarded as amended accordingly. A copy of the amended writ should be filed within 48 hours.

3. By their Defence the defendants admitted drawing the bill in question but denied. countermanding payment. However, at trial it was common ground that they had stopped the cheque and, in the light of that admission, no question of notice arises. Bills of Exchange Ordinance (Cap. 19) section 50(2)(c)(v).

4. By Purchase Order No. MTDO - 110/85 dated 1st March 1985 and signed by or on behalf of the parties the defendants agreed to buy from the plaintiff 300,000 Toshiba components at an overall price of US$147,500 to be delivered in five lots. The plaintiff undertook to try to meet certain specified dates. As to payment.

10% of 10,000 Kits [of components] as deposit upon signing this contract, balance 90% cash on delivery (COD)

On or about 16th January 1985, pursuant to an antecedent agreement, the defendants had presented the plaintiff with a post-dated cheque for $21,840 which was appropriated in satisfaction of their obligation to furnish a deposit under the 1st March agreement. It was dated 17th July 19850 The consideration for the appropriation of that cheque was the plaintiff’s promise to sell and deliver the Toshiba components to the defendants.

5. The judge found that 70,000 components were delivered and paid for in full but that the defendants had in due course failed to give delivery instructions for the balance and were to be regarded as having repudiated the agreement. He went on to find that there had been a total failure of the consideration for the cheque in question. We are unable to accept this conclusion of law in the light of the sale and delivery of the 70,000 components and of the plaintiff's continued willingness to deliver the balance.

6. In the premises and subject to the same qualification the appeal must be allowed and judgment entered in favour of the plaintiff for the sum of $21,840 together with interest as provided by section 57(a)(ii) of the Ordinance. The rate will be 8 per cent per annum and it will run; as claimed, from the date of the writ until today.

7. Now we come to the qualification. The defendants, though properly served with all necessary documents, have not appeared at the hearing of this appeal. In case they should have any representation to make in relation to the leave we have given to the plaintiff to amend the appeal will be allowed by an order nisi; not to take effect until the expiry of 14 days after the posting of copies to the defendants who will have liberty to apply on 24 hours notice. If they fail to apply within 14 days the order may be drawn up. The plaintiffs will have their costs here and below.