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Chan Chiu-hung v Pantex Carment Factory And Others

Judgment Cited authorities 22 Cited in Precedent Map Related
Vincent
Judgment Date10 January 1974
Year1974
Judgement NumberDCCJ164/1973
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ000164/1973 CHAN CHIU-HUNG v. PANTEX CARMENT FACTORY AND OTHERS

DCCJ000164/1973

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT TSUEN WAN

CIVIL JURISDICTION

ACTION NO.164 OF 1973

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Between:-
CHAN Chiu-hung Plaintiff
and

Pantex Garment Factory

 1st Defendant

Mr. Emil Haas trading as Pantex Garment Factory

 2nd Defendant

CHAN Cheuk-chong alias CHAN Cheuk trading as Yick Hing Decoration Co.

 3rd Defendant

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Coram: D.A. Davies, D.J. in chambers

Date of Judgment:10 January 1974.

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RULING

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1. The position in this action is that the Plaintiff as the holder of a cheque which was subsequently dishonoured, issued a writ against the two drawers (1st and 2nd Defendant) and the endorser (3rd Defendant).

2. The Plaintiff later filed a Notice of Discontinuance in relation to his claim against 1st Defendant, and in due course has obtained judgment by default against 3rd Defendant.

3. The present application is made by Miss Kelly on behalf of 2nd Defendant and prays for an order that by reason of his having obtained judgment against 3rd Defendant, the Plaintiff is now barred from proceeding further against 2nd Defendant.

4. In support of this application Miss Kelly relies upon R.S.C. , O. 19, R. 2/5, and in particular the final paragraph in the Annual Practice 1973 page 314.

" Proceed Against the Other Defendants.- The effect of this Rule is to remove an action against several joint contractors sued together in one action from the limitation imposed on such actions, by King v. Hoare, 13 M. & W. 494; Kendall v. Hamilton, 4 App. Cas. 504; Parr v. Snell, (1923) 1 K.B. 1. Judgment may be taken against one in default of appearance; against another under O. 14; and against a third under this rule, without prejudice to further prosecuting the action against the remainder (Weall v. James, 68 L.T. 515, C.A., and Walton v. Topakyan & Co. (1905), 53 W.R. 657, C.A., decided on similar words in O. 14, r. 5, and see Goldrei, Foucard & Son v. Sinclair, (1918) 1 K.B. 180, C.A., there cited). But if a judgment is obtained by consent against any one of the joint contractors such judgment may be pleaded as a bar to further proceedings against the others (NcLeod v. Power (1898) 2 Ch. 295).
And where two defendants are sued on a claim on which the plaintiff has a right of action alternatively, but not jointly, a judgment against one of them is equivalent to an election to sue that one, and a bar to further proceedings against the other (Morel Bros. v. Westmorland, Earl of, (1903) 1 K.B. 64, C.A.; Moore v. Flanagan, (1920) 1 K.B. 919, C.A.; and see Sullivan v. S., (1912) 2 Ir. R. 116); and a judgment entered against one of two defendants alternatively liable cannot be set aside by order to enable the plaintiff to obtain judgment against the other (Cross & Co. v. Matthews, 91 L.T. 459).
See more fully O. 14 r. 8(n) "Law as to Joint Contracts", para. 14/8/2, supra."

5. After hearing the submission, I expressed some doubt as to whether the principle enunciated in that paragraph was applicable to an action upon a dishonoured cheque where the holder sues both drawer (s) and endorser (s), because it is stated to apply to actions where defendants are sued "in the alternative", whereas my understanding was that on a dishonoured cheque the liability of drawer and endorser is both joint and several.

6. A certain amount of further research has revealed that my doubt was fully justified, and with great respect to Miss Kelly, it would seem that her application is founded upon a misapprehension of what is meant by defendants being sued "in the alternative".

7. This is however made clear by O. 15 R. 4/7 (Annual Practice 1973 page 167):

" Joinder of Parties in the Alternative.- Where there is or may be a doubt as to which of two or more persons is entitled to the relief claimed, e.g., whether C made a contract with A or with B, such persons may be joined as plaintiffs in one action, and make their respective claims in the ternative. The costs, in so far as they are increased by the joinder of the unsuccessful plaintiff, are in the discretion of the Court under O. 62, r. 3, infra, but where the joinder was reasonable, as where the defendant has himself raised the doubt, the defendant may be ordered to pay such costs (on the analogy of Bullock v. L.G.O. Co., (1907) 1 K.B. 264).
Similarly, where the plaintiff is in reasonable doubt as to the person from whom he is entitled to redress, he may join two or more defendants in one action, and make his claim against them severally or in the alternative (of. the former O. 16, r. 7, which has not been expressly reproduced). Thus where each of two proposed defendants blames the other, the proper course is to join both, and to make the claim against them severally or in the alternative, but not jointly (per Bankes, L.J., in The Koursk, (1924) P., p.153). This practice applies in Admiralty (The W.H. Randall, (1928) P. 4).
The power to join several defendants in the same action for the purpose of claiming relief against them severally or in the alternative is not confined to cases in which the causes of action alleged as against the several defendants
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