XCHRX TOKYO BOEKI (H.K.) LTD. v. KEI YUEN CHUNG t/a KAM HAI TRADING DEVELOPMENT CO.

HCA4377/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.4377 OF 2000

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REASONS FOR DECISION

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1. This is the defendant's appeal against the decision of Master Mary Yuen dated 20 June 2001 entering judgment in favour of the plaintiff under Order 14.

2. Three points have been taken on behalf of the defendant. First, it is said that there is no due verification in accordance with Order 14, rule 2. The rule requires an affidavit verifying "the facts on which the claim, or the part of a claim, to which the application relates is based and stating that in the deponent's belief there is no defence to that claim". I am of the view that the affirmation of Mr Masaaki Sugihara, director of the plaintiff, dated 13 February 2001 satisfies this requirement.

3. The second point is a vague defence in relation to the identity of the parties to the four contracts sued upon. The defendant failed to condescend to particulars as to the true nature of this defence. There is no cogent explanation as to why he appended his signature to the four contracts.

4. The last is a limitation point. The plaintiff relies on two heads of acknowledgment. The first relates to two repayment proposals dated 6 December 1997 and 18 December 1998. I am of the view that it is arguable whether these two documents are sufficient acknowledgements within section 24(2) of the Limitation Ordinance. The second relates to a payment of $100,000 on 15 October 1994 by cheque drawn by Eastern Ocean International Co. Limited. The defendant gave no answer to the plaintiff's case as pleaded in paragraphs 7 and 8 of the Statement of Claim which assert an aggregate debt and paragraph 4 of the Reply and paragraph 6 of the said affirmation of Mr Sugihara that this cheque was drawn by Eastern Ocean International Co. Limited as agent of the defendant in partial payment of the sums due under the four contracts.

5. I dismiss the defendant's appeal with costs to the plaintiff and certificate for counsel.