XCHRX SINO TEAM LTD. v. LEUNG FOO AND OTHERS

HCA 4462/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4462 OF 1999

----------------------

----------------------

J U D G M E N T

----------------------

1. This is an application for summary judgment in an action brought on a dishonoured cheque for $413,599.70. The defendants say that there was no consideration for the cheque and that the plaintiff has agreed to its cancellation. The plaintiff says that the consideration for the cheque was the plaintiff's forbearance to sue a company called Fu Lai Wah Fashions Ltd. for monies due to the plaintiff, and that any agreement for cancellation was dependent on the issue of a letter of credit which has not in fact been issued. There are what appear to me to be genuine disputes of fact as to whether any forbearance to sue was a forbearance at the request of the defendants, and indeed I think the circumstances in which the cheque was given do require investigation.

2. I have considered giving leave to defend conditional on payment of the amount claimed into court, but I do not think this is a proper case for such an order. I will give unconditional leave to defend with an order for costs in the cause until 21 May 1999 (the day after the date of a letter was sent by the defendants' solicitors to the plaintiff's solicitors offering to agree an order giving such leave to the defendants with an order for costs in the cause) and thereafter an order for the defendant to have their costs of this application in any event.