SUPER ELECTRIC MOTOR LTD. v. PAI CHUNG YING

CACV000225/1994

IN THE COURT OF APPEAL

1994, No. 225
(Civil)

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Coram: Nazareth, V.-P., Bokhary and Mortimer, JJ.A.

Date of hearing: 6 April 1995

Date of judgment: 6 April 1995

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J U D G M E N T

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Bokhary, J.A.:

1. The 1st defendant appeals against a judgment dated November 30 last year whereby Findlay J, reversing a refusal of summary judgment by Master Jennings, gave summary judgment for the plaintiff against the 1st defendant in the sum of $2,282,901.07 together with interest and costs.

2. That judgment can only be justified if it is clear that there is no real defence to the plaintiff's pleaded case of its entitlement to that sum from the 1st defendant. In my judgment, that is not clear.

3. As it was pointed out by the court itself at a very early stage of this hearing, it is at least reasonably arguable that the way in which the plaintiff has pleaded its case and the basis on which the judge decided the case in its favour do not match. That being so, none of the other points really matter.

4. Summary judgment, if it is to be given, is to be given on the pleaded case.

5. Taking the view, as I do, that a trial is now necessary, I do not propose to say more than what I have already said. For to do so is: first of all, unnecessary; and, secondly, pregnant with danger of prejudicing the trial.

6. I would allow this appeal and set aside the order appealed against.

Mortimer, J.A.:

7. I agree and would also allow this appeal.

Nazareth, V.-P.:

8. I also agree and am content to rest my agreement on the reasons given.

Representation:

Miss Sze Kin (instructed by Jeseph W.K. Poon & Woo) for the Appellant/1st Defendant

Mr Johnson Lam (instructed by Y.C. Lee & Pang) for the Respondent/Plaintiff