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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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 is one 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 there has 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 would involve a threefold mistake involving three independent people on three different dates.  The first mistake would be by Lee Yuet-fan making 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 making out the cheque for $5,349 on        28 August 2004 by again affixing D2’s chop thereon.  The third mistake would be by the 1st defendant, 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 from the 2nd  defendant’s   counsel  and  his  handling  and  presentation  of  the  2nd defendant’s case, I am not satisfied that the 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 from 30 September 2004 to payment on judgment rate together with costs.