A A

B B

C
HCCT 16/2020 C
[2021] HKCFI 309
D D

E IN THE HIGH COURT OF THE E

HONG KONG SPECIAL ADMINISTRATIVE REGION
F F
COURT OF FIRST INSTANCE
G CONSTRUCTION AND ARBITRATION PROCEEDINGS G

NO 16 OF 2020
H H
____________________
I I
BETWEEN
J J
CHINA STATE FOUNDATION ENGINEERING LIMITED Plaintiff
K K
and
L L
GOLD BRILLIANT INVESTMENT LIMITED Defendant
M ____________________ M

N N

Before: Hon Mimmie Chan J in Chambers (Open to public)

O O
Date of Hearing: 3 November 2020
P Date of Decision: 8 February 2021 P

Q _____________ Q

DECISION
R R
_____________

S S

T T

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Background
C C
1. The Plaintiff seeks summary judgment on its claim against

D
the Defendant for $9,528,300 under a cheque numbered 000201, drawn D
on the Bank of China and dated 17 February 2020 (“Cheque”). The
E E
Cheque was presented by the Plaintiff for payment on 25 March 2020,

F and was dishonoured on 26 March 2020. The Writ was issued on 6 May F
2020, and the Order 14 Summons was issued on 25 May 2020 for
G G
judgment to be entered.
H H

2. The Plaintiff was engaged by the Defendant, which is the

I I
developer of the Ho Man Tin Station Package One Property
J (“Development”) at a site in Kowloon (“Site”). Under a Letter of Award J

dated 15 February 2018 (“LOA”), the Plaintiff was engaged to carry out
K K
the main contract works at the Site (“Works”). The LOA states that the
L relationship between the Plaintiff and the Defendant with respect to the L

Works was to be governed by the terms and conditions agreed and

M M
referred to as the GCC and SCC.
N N

3. It is not disputed that the Plaintiff commenced the Works on

O O
1 March 2018, and that the original date for completion of the Works was
P 28 July 2019. Interim payment certificates (“IPCs”) were applied for and P

issued in the course of the progress of the Works, the total amount
Q Q
certified by IPC 1 to IPC 16 being $124,710,300.
R R

4. On 16 October 2019, IPC 17 was issued by the Architect,

S S
certifying that $9,528,300 was due to the Plaintiff. The Plaintiff issued
T its invoice on 18 October 2019 for payment of the certified sum, and it is T

not disputed that the Cheque was issued for settlement. Upon
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presentation and dishonor of the Cheque, these proceedings were
C instituted. C

D D
5. In opposition to the Plaintiff’s application for summary
E judgment, the Defendant asserts that it has a claim against the Plaintiff for E

liquidated damages in respect of the delay in completion of the Works,

F F
which claim can be set off against the sum payable under the Cheque
G (“Set-off Defence”). The Defendant further claims that the Cheque was G

delivered conditionally, and there was an agreement between the Plaintiff

H H
and the Defendant that the Cheque would not become operative unless
I and until the Plaintiff executed a formal contract for the Works, which the I

Plaintiff never did (“Alleged Agreement Defence”).

J J

K K
Set-off Defence
L 6. It is not disputed that if a legal set-off can be established, L

there is a valid defence to the claim under the Cheque (Safa v Banque de M
M
Caire [2000] 2 Lloyds Rep 600, at 606). The issue in dispute between the
N N
parties is whether the Defendant’s claim to damages of $11,900,000

O
(certified as at 31 August 2019), for alleged delay in completion of the O
Works, is a liquidated claim (for which a defence of set-off is available),
P P
or an unliquidated claim (for which no defence of set-off can be raised).

Q Q
7. Liquidated damages clauses are commonly used in the
R R
construction and building industry. They are often agreed to be paid as
S damages for some breach of contract, and a typical liquidated damages S

clause provides that if the contractor shall fail to complete its works by a
T T
date stipulated in the contract, or any extended date, the contractor shall
U U

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pay or allow the employer to deduct liquidated damages at the rate of $x
C per day or week for the period during which the works are uncompleted. C

D D
8. GCC 22 which governs the contract between the Plaintiff and
E the Defendant in this case provides that if the Plaintiff as the main E

contractor fails to complete the Works by the Date for Completion stated
F F
in the conditions, or within any extended time fixed under GCC 23 of the
G conditions, and the Architect certifies in writing that in his opinion the G

same ought reasonably so to have been completed, then the Plaintiff shall
H H
pay or allow to the Defendant as the employer a sum calculated at the rate
I of $350,000 per day (“Rate”), as Liquidated and Ascertained Damages, I

for the period during which the Works shall so remain or have remained
J J
incomplete, and the Defendant as employer may deduct such sum from
K any monies due or to become due to the Plaintiff under the contract. K

L L
9. It is not disputed in this case that the Works were not
M M
completed by the original Date for Completion on 28 July 2019.

N
Four notices of delay were issued by the Plaintiff and on 23 August 2019, N
the Architect of the Project issued a Non-Completion Certificate for the
O O
Works (“NC Certificate”), certifying that the Plaintiff had failed to

P
complete the Works by 28 July 2019, that all claims for extensions of P
time had been addressed, and that pursuant to GCC 22, the Plaintiff
Q Q
should pay or allow to the Defendant a sum calculated at the Rate as

R Liquidated and Ascertained Damages for the period during which the R

Works shall remain incomplete. The Architect further stated in the NC

S S
Certificate that the Defendant may deduct such sum from any monies due
T or to become due to the Plaintiff under the contract, without prejudice to T

any other rights and remedies of the Defendant for non-completion of the
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Works. On 16 October 2019, the Architect stated that the Liquidated and
C Ascertained Damages calculated at the Rate for 34 days, up to 31 August C

2019, were $11,900,000.

D D

E 10. On behalf of the Plaintiff, Mr Wong submitted that the court E

should resist “the superficial attraction of the proposition” that the

F F
Defendant’s claim for liquidated damages for delay must be a liquidated
G claim. Mr Wong pointed out that in order to arrive at the amount of the G

alleged liquidated damages, only the daily Rate is a fixed liquidated

H H
component, whereas the other essential component is the assessment of
I the length of the delay. The latter and essential component requires an I

estimate to be made by the Architect, based on his assessment of the fair

J J
and reasonable extension of time to which the Plaintiff is entitled. Such
K estimate involves judgment of what is fair and reasonable, and is not K

mere arithmetic calculation, thus rendering the claim for liquidated

L L
damages for delay to be unliquidated. Counsel further pointed out that
M M
the assessment or estimate made by the Architect is reviewable by

N
arbitration under GCC 35(3), and by the Court (W Hing Construction Co N
v Boost Investments Ltd [2009] 2 HKLRD 501, at para 99).
O O

P
11. Mr Wong further highlighted the fact that the question of P
delay involved the parties’ dispute as to whether the delay fell within one
Q Q
of the qualified events which entitle the Plaintiff to fair and reasonable

R extensions of time in accordance with GCC 23. The issues raised are not R

straightforward, and the parties had in October 2019 agreed not to resolve
S S
the dispute over extensions of time and the liquidated damages to which
T the Defendant may be entitled. No reserve was made for liquidated T

damages when IPC 16 was paid on 12 November 2019.

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B B
12. A liquidated demand is described at para 6/2/4 of Hong Kong
C Civil Procedure 2021: C

“A liquidated demand is in the nature of a debt, ie a specific

D D
sum of money due and payable under or by virtue of the
contract. Its amount must either be already ascertained, or
E capable of being ascertained as a mere matter of arithmetic. If E
the ascertainment of a sum of money, even though it be
specified or named as a definite figure, requires investigation
F beyond mere calculation, then the sum is not a ‘debt or F
liquidated demand’ but constitutes ‘damages’.”
G G

13. On behalf of the Plaintiff, it was contended that the

H H
contractual mechanism under GCC 22 renders the Defendant’s claim
I unliquidated, since it requires investigations beyond mere calculations. I

J J
14. There can be little debate, that the assessment of an extension
K K
of time application, and estimates of the impact of events on time for

L
works to be done and the consequential delay, do involve judgment to be L
made by the architect, or any other party entrusted to do the estimate.
M M
However, one cannot ignore the reminders made by the courts, in the

N authorities referred to by the parties, that the focus is on the consideration N

of the nature of the claim, and that a debt for a liquidated sum is a pre-
O O
ascertained liability under the agreement of the parties, calculated or
P ascertained in accordance with a contractual formula or machinery P

specified in the agreement.

Q Q

R 15. I start with Onway Engineering Ltd v Shun Wing R

Construction & Engineering Co Ltd, unreported, HCA 88/2008, where

S S
Deputy Judge Carlson explained the meaning of a “liquidated pecuniary
T claim”. At paragraph 23, the learned judge observed: T

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“In my judgment, one needs to be careful not to confuse the
nature of a claim, liquidated or unliquidated, with the means by
C which the claim will need to be proved at the trial. Even with a C
liquidated claim the plaintiff may, depending on the type of
case that it is, have to call evidence in support of how the claim
D D
is computed… As at the trial before Deputy Judge Muttrie,
when the parties called expert evidence on the quantum of the
E claim, the same course will need to be taken in this case. In E
order to determine whether a claim is liquidated or not one
needs to look at the basis of the claim. In many cases, where
F for instance, the amount sued for is based on a clearly F
quantified debt there will be no difficulty. Where the matter is
G not so clear cut, in the sense that the arithmetic needs to be G
done, the nature or character of the claim will still remain that
of a liquidated claim.
H H
The basis of this claim is readily calculable by doing the
necessary sums… The fact that a defendant may defend on the
I I
basis that less work was done than has been claimed for or that
the work was done defectively as a whole or in part will not
J convert a liquidated claim into an unliquidated one.” J

K K
16. The meaning of a debt for liquidated sum was explained in
L further detail by Cheung JA in Re Grande Holdings Ltd [2016] 1 L

HKLRD 435, where His Lordship reviewed the decisions in McGuinness

M M
v Norwich and Peterborough Building Society [2012] 2 All ER
N (Comm) 265, In Ex p Ward (1882) 22 Ch D 132 and Revenue and N

Customs Commissioners v Maxwell [2011] Bus LR 707. It is true that the

O O
“components” in Ex p Ward, Re Grande Holdings Ltd and Revenue and
P Customs Commissioners v Maxwell which were required for the P

ascertainment of the amount, being the market closing prices in

Q Q
Ex p Ward, the values of the derivatives in Re Grande Holdings, and the
R income and expenditure of a company for calculating the corporation tax R

payable in Maxwell, may be different to the components in the present

S S
case, Cheung JA highlighted in Re Grande Holdings that the
T distinguishing factor and the meaning of a liquidated debt is in its nature T

as a pre-ascertained liability under the agreement of the parties, by

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reference to a contractual formula or machinery specified by the parties
C themselves, and accepted by them as a genuine pre-estimate of the loss C

likely to be sustained on the occasion of a breach. At paragraph 6.5 of his

D D
judgment, Cheung JA observed:
E E
“In my view, a more useful statement on the meaning of a debt
for a liquidated sum is that it is a pre-ascertained liability under
F the agreement of the parties. This includes a contractual F
liability where the amount due is to be ascertained in
accordance with a contractual formula or contractual machinery.
G This can be found in the judgment of Patten LJ in McGuinness G
v Norwich and Peterborough Building Society [2012] 2 All ER
H (Comm) 265. After reviewing the authorities, Patten LJ stated H
that:

I These authorities indicate and I think establish that a debt I

for a liquidated sum must be a pre-ascertained liability
under the agreement which gives rise to it. This can
J J
include a contractual liability where the amount due is to
be ascertained in accordance with a contractual formula
K or contractual machinery which, when operated, will K
produce a figure. Ex p Ward is the obvious example of
that. Claims in tort are invariably unliquidated because
L they require the assistance of a judicial process to L
ascertain the amount due by way of damages. In some
M cases the calculation of the award will be straightforward M
and obvious but the unliquidated nature of the claim
excludes it from being a good petitioning creditor’s debt
N which satisfies the requirements of s.267. N

The most obvious use of the term ‘liquidated’ has been in

O O
relation to liquidated damages. ‘Liquidated’ has been
defined judicially as meaning the sum which the parties
P have by their contract assessed as the damages to be paid P
for its breach: see Wallis v Smith (1882) 21 Ch D 243 at
267 per Cotton LJ. If a genuine pre-estimate of loss the
Q provision is enforceable according to its terms. I would Q
therefore regard a claim for liquidated damages as one for
R a liquidated sum within the meaning of s.267 unless a R
claim in damages is excluded by the use of the word
‘debt’. (Emphasis added)”
S S

T 17. Cheung JA highlighted the fact, as found by Lord Neuberger T

in Revenue and Customs Commissioners v Maxwell, that the calculation

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of the liquidated sum is always subject to the right of a party to challenge
C it. At paras 58 to 59 of his judgment, Lord Neuberger had observed: C

D
“In this case, HMRC rely on the point that, as at the date that D
the company went into administration, the facts relating to the
income and expenditure of the company were known for all the
E six relevant periods. Accordingly, runs their argument, it E
would have been possible, effectively as a matter of arithmetic,
to calculate how much was owing by way of corporation tax in
F F
respect of those periods, and the total tax owing was therefore a
liquidated and ascertained sum, subject always to the right of
G the company to challenge it. I see the force of that argument, G
but it seems to me that, as a matter of ordinary language, as at
9 September 2009, the amounts owing by way of corporation
H tax were not ascertained and liquidated (at least over and above H
the amounts specified in the company’s self-assessments). In
I order to calculate what was owing, one would have had to trawl I
through figures in the company’s accounts, investigate the law
relating to EBTs and payments to directors, and carry out
J calculations which were not straightforward. In many damages J
claims, one could work out the amount likely to be assessed by
the court, but that does mean that an unresolved damages claim
K K
is a liquidated or ascertained debt.

L Thus, in my opinion, in respect of all six periods, any L

corporation tax claimed to be due, over and above the
self-assessments, was not a liquidated ascertained sum, until
M HMRC had issued notices of amendment. However, once such M
notices were issued, I consider that the sums therein were
N
liquidated and ascertained sums, in the amounts specified in the N
amendments (albeit subject to the possibility of challenge by
appeal for tax purposes and assessment for voting purposes at
O meetings): Taxes Management Act 1970, sections 59D(1) and O
55(1)(a)(2)(a). The fact that the sums so specified were subject
to appeal and stay applications would not, in my view,
P P
undermine that conclusion: to hold otherwise would involve
confusing ascertainment with unchallengeability.”
Q (Emphases added) Q

R R
18. In Tian Yao (Xiamen) Property Development Company
S Limited v Chan Shu Chun HCMP 2396/2015, 18 February 2016, Barma S

JA applied the same principles, to hold that a claim for excess sales
T T
proceeds as profits under a sales agency agreement was one for a
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liquidated debt. At paragraph 19 of the judgment, His Lordship
C explained: C

“It is clear from Mr Hung’s description of the steps needed to

D D
work out the amount of the excess sale proceeds that all that is
involved is a series of arithmetical operations, based on a
E formula specified in the contract. True it is that some of the E
inputs may need to be supplied, and may even be the subject of
dispute (as is the case here in relation to the number of
F apartments sold), but that does not alter the nature of the claim F
from liquidated to unliquidated.
G … The fact that further information was required in order to G
establish the amount of the debt or liquidated demand, and that
there might be some dispute as to what the position actually
H H
was, or indeed that the calculations required under the contract
to ascertain the amount might be complicated, did not make the
I claim in question an unliquidated one. What was important I
was that once the inputs were known, the amount due was
ascertainable by a process of calculation specified by the parties
J J
in their contract, without the need for further agreement from
the parties, or assessment by the court by reference to the
K general legal principles, thus going beyond what was provided K
for by the contract.” (Emphases added)

L L

19. The identification of the inputs for components may be

M M
complicated, but once identified, the application of the formula specified
N in the contract does not involve any further assessment by the court. In N

Lee Kwok Wing v Chung Chuen Mei [2012] 4 HKLRD 917, Deputy
O O
Judge Lisa Wong SC (as Her Ladyship then was) explained that the
P process of “assessment” refers to the process by which the court decides, P

in accordance with legal principles, the amount of damages or

Q Q
compensation which should be paid to a plaintiff to address any wrong
R done by the defendant’s breach. R

S S
20. In my view, the factors highlighted by Mr Wong on the
T Plaintiff’s behalf, that the calculation of the liquidated sum is dependent T

on the Architect’s value judgment and his assessment of what is fair and
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reasonable by way of extensions of time and what represents the period of
C delay, go only to show that the Architect’s assessment and computation C

of the period of delay, and his resulting calculation of the liquidated

D D
damages, may not be final, and may turn out to be wrong, because of the
E matters in dispute between the Plaintiff and the Defendant. E

F F
21. However, as the courts have made it clear, to be a liquidated
G sum, the quantified debt does not have to be undisputable, or G

unchallengeable (paras 57 and 59 in Revenue and Customs

H H
Commissioners v Maxwell, para 6.12 of Re Grande Holdings, and paras
I 19 and 20 of Tian Yao). There is nothing in GCC 22 which states that the I

certification of either the period during which the Works remained

J J
incomplete, or the amount of liquidated and ascertained damages
K calculated, is final and binding. Any interim payment based on the K

interim payment certificates, and any deductions made therein by the

L L
employer, may be challenged and reopened for determination by the court
M M
or arbitrator in accordance with the dispute resolution mechanism under

N
the contract. The Architect’s assessment of delay, based on any N
extension of time granted, is not final, and the final payment due to the
O O
Plaintiff in respect of the Works will ultimately be determined, with

P
account given for any wrongful deductions made by way of liquidated P
damages, or otherwise. As Mr Wong pointed out, the parties agreed
Q Q
under GCC 35(3) that in a dispute between the parties which arise under
R their contract, the arbitrator has the express power to open up, review and R

revise any certificate and to determine all matters in dispute as if no such

S S
certificate, opinion, decision had been given by the Architect.
T T

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22. After careful review of the authorities, I uphold the
C correctness of the “superficially attractive proposition” to which Counsel C

had referred, and conclude that the Defendant is entitled to deduct and
D D
set-off its claim of liquidated damages for delay, against the Plaintiff’s
E claim under the Cheque. This is particularly so since the Architect had E

already issued the NC Certificate on 23 August 2019. Once that

F F
certificate was issued, the sum calculated by multiplying the Rate to the
G period of delay from 28 July 2019 can be ascertained, to become a G

liquidated and ascertained sum, which was also on 16 October 2019

H H
ascertained up to 31 August 2019. The fact that the sum could be
I challenged and reviewed by the court or in arbitration, and are not final, I

does not undermine the conclusion that the sum was liquidated.
J J

K 23. Where the Defendant can show an arguable set-off, it is K

entitled to leave to defend to the extent of the set-off, and the Court has
L L
no discretion (para 14/4/14 Hong Kong Civil Procedure 2020).
M M

N Alleged Agreement Defence N

O
24. I am not satisfied that the Defendant has any arguable or O
credible defence of conditional delivery of the Cheque.
P P

Q
25. The clear principle of law is that parole evidence cannot be Q
admitted to add to, vary or contradict a written instrument (Lewison on
R R
The Interpretation of Contracts, 2004 edition, para 3.07, citing Jacobs
S v Batavia and General Plantations Ltd [1924] 1 Ch 287). The Cheque is S

a written contract in itself, and as such, extrinsic evidence outside the

T T
contract will not be admitted to prove that some particular term had been
U omitted or included. U

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26. Under section 21 of the Bills of Exchange Ordinance, the
C delivery of a bill may be shown to have been conditional or for a special C

purpose only, and not for the purpose of transferring the property in the
D D
bill. The Defendant seeks to rely on the correspondence between the
E Plaintiff and the Defendant, to show that the Defendant’s delivery of the E

Cheque to the Plaintiff was conditional upon the Plaintiff’s execution of

F F
the formal contract for the Works, which the Plaintiff had not done so
G since the LOA was issued and despite the Defendant’s repeated requests. G

H H
27. Even if the emails sought to be relied upon by the Defendant
I are admissible for the purposes of section 21, and are admitted, they do I

not clearly show that the Cheque sent to the Plaintiff on 18 February 2020
J J
was conditional, as the Defendant claims, or at all.
K K

28. The Defendant’s evidence is that after the LOA was issued
L L
on 15 February 2018 and countersigned, possession of the Site had been
M M
given to the Plaintiff, Works had commenced and interim payments were

N
made, but the formal contract had not been signed. In December 2019, N
after IPC 16 had been paid, the Defendant issued a reminder to the
O O
Plaintiff to sign the formal contract documents.

P P
29. IPC 17 was presented by the Plaintiff on 21 October 2019,
Q Q
and on 15 January 2020, the Plaintiff issued a further reminder to the

R Defendant for payment. On 16 January 2020, Ms Leu of the Defendant R

(“Leu”) sent an email to the Plaintiff, stating that as the Defendant’s bank
S S
had been chasing it for the signed contract documents, and since the
T contract documents had not yet been signed by the Plaintiff, the release of T

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payment to the Plaintiff might be jeopardized. Leu concluded the email
C by stating: C

“We hereby notify you that the release of payment is subject to

D D
your positive response to sign and return back the contract
documents as soon as possible without any further delay.”
E E

F
30. No response was received from the Plaintiff, and on F
22 January 2020, Leu sent another email to the Plaintiff, stating:
G G
“… we reiterate again that the release of payment is subject to
your quick response to sign and return back the contract
H documents as soon as possible to fulfill the bank’s H
requirement.”
I I

31. The email was again ignored, and on 6 February 2020, after
J J
receiving the Plaintiff’s payment reminder for IPC 17, Leu emailed the
K Plaintiff, stating: K

L “… please help to handle the contract documents promptly so L

as to facilitate the release of payment by the bank. Your
immediate action to sign and return the duly signed contract
M documents is necessary.” M

N N
32. In response, the Plaintiff only issued another reminder for
O payment of IPC 17, leading Leu to send an email on 14 February 2020, to O

state:
P P
“We do not want to repeat again and again our reply as attached.
Q In order to facilitate our release of payment, your prompt action Q
to sign and return back the contract document is necessary.
The hurdle of release of payment is caused by your side.”
R R

S 33. After the email of 14 February 2020, the Defendant issued a S

letter to the Plaintiff, to put on record that the Plaintiff had refused to
T T
execute and return the formal contract, and demanded for the executed
U U

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contract documents within 7 days. The Defendant claims that there were
C also messages exchanged between representatives of the Plaintiff and the C

Defendant, the Defendant indicating in these messages that it was still

D D
awaiting the signed contract from the Plaintiff. From these messages, it is
E in fact clear that on 12 February 2020, the Plaintiff already stated in no E

uncertain terms to the Defendant that the Plaintiff would not be signing
F F
and returning the formal contract.
G G

34. The Defendant also claimed that on 17 February 2020, Leu

H H
spoke with Ms Ho of the Plaintiff, in the course of which Leu proposed
I that a copy of a cheque for $9,528,000 would be provided to the Plaintiff, I

but this was rejected by Ho. Leu then proposed that the actual cheque
J J
would be provided, but that the Plaintiff should wait before presentation.
K K

35. Then, on 18 February 2020, the Cheque was delivered to the

L L
Plaintiff.
M M

N
36. On the Defendant’s case, having regard to the emails, N
messages and Leu’s conversations with Ho, “there can be no doubt that
O O
the Cheque was provided to the Plaintiff on the basis that it did not take

P
effect unless and until the Plaintiff’s execution of the Formal Contract”, P
and that it meant that the Plaintiff should not present the Cheque for
Q Q
payment unless and until it had signed the formal contract. From that, the

R Defendant goes on to claim, in the affirmation of Wong Kin Ming, that R

the parties had mutually understood and agreed that the Cheque was not
S S
to become operative unless and until the Plaintiff executed the formal
T contract. T

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37. The emails and messages relied upon by the Defendant go
C nowhere near to establishing that the Cheque was delivered with the C

alleged condition attached, that the formal contract should be signed and
D D
returned. Even on Wong’s narrative of the telephone conversation
E between Leu and Ho on 17 February 2020, there was no mention of the E

execution and return of the contract documents when the provision of the
F F
Cheque was proposed. The only possible condition that could arguably
G have been attached was that the Plaintiff had to wait before presenting the G

Cheque for payment. On the facts, the Plaintiff did wait until 25 March
H H
2020.
I I

38. The Defendant’s emails of 16 and 22 January and 6 February

J J
2020 only referred generally to “the release of payment”, with no specific
K reference to the Cheque, nor to the delivery of the Cheque on 18 February K

2020. It was only on 19 March 2020, that the alleged existence of a

L L
condition of the Cheque, that the executed contract documents should be
M M
returned, was raised by the Defendant in its letter, for the first time.

N N
39. The emails and messages relied upon by the Defendant also
O O
fail to demonstrate that the Plaintiff had on its part agreed to any

P
conditions sought to be imposed by the Defendant, whether in relation to P
the release of payments, or to the delivery of the Cheque, at all. As
Q Q
Counsel for the Plaintiff submitted, the extrinsic evidence only shows the

R unilateral attempts made by the Defendant to impose conditions on the R

Plaintiff. The mere acceptance of the Cheque was unequivocal as

S S
conduct of the Plaintiff referable to or evidencing the alleged agreement
T on the condition. The Plaintiff’s acceptance of the cheque can be T

consistent with there being no contract between the parties to the effect
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contended for by the Defendant. There is no evidence of any “mutual
C agreement” as alleged. C

D D
40. My conclusion is that the Defendant’s assertions as to the
E conditions and agreement for the delivery of the Cheque are unbelievable, E

and do not support any triable issue or arguable Alleged Agreement

F F
Defence, and I do not grant leave to defend on this ground.
G G

H Disposition H

41. On the Order 14 summons, I grant leave to the Defendant to

I I
defend on the Set-off Defence, with an order nisi that the costs should be
J in the cause. J

K K
42. Parties should submit within 14 days agreed directions for
L the further conduct of the action. L

M M

N N

O O

P (Mimmie Chan) P
Judge of the Court of First Instance
Q
High Court Q

R R
Mr Jonathan Wong and Miss Leticia Tang, instructed by M/S J Chan, Yip,
S So & Partners, for the plaintiff S

T Mr David Chen, instructed by Deacons, for the defendant T

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