Gitanes Engineering Co Ltd v Cowinda Ltd

Court:High Court (Hong Kong)
Judgement Number:HCA11472/1982
Judgment Date:07 Dec 1983
HCA011472A/1982 GITANES ENGINEERING CO LTD v. COWINDA LTD

HCA011472A/1982

IN THE HIGH COURT OF JUSTICE

NO.11472 OF 1982

BETWEEN:-

GITANES ENGINEERING COMPANY LIMITED

Plaintiff

- and -

COWINDA LIMITED

Defendant

_________

Coram: The Honourable Mr. Justice Jones in Chambers

Date of Hearing: 7th December 1983

Date of delivery of judgment: 7th December 1983

Mr. Edward Chan (Poon & Sum), for Plaintiff

Mr. Alfred Law (Shea & Co.) for Defendant

__________

JUDGMENT

__________

1. This is an appeal against a decision of Master Barrington-Jones made on the 10th November 1983 when he dismissed the plaintiff's summons for security for costs.

2. The plaintiff's claim arises as a result of an oral agreement with the defendant entered into on the 15th January 1982 for the transportation of mud and for the plaintiff to purchase pell mell rubble from the defendant. The agreement was varied with regard to price on the 12th February 1982. After amounts owed to the defendant have been set off together with the sum of $100,000 which the defendant has paid on account, the plaintiff's claim amounts to $545,755.45.

3. The defendant admits the agreement with the plaintiff, but contends that the contract price was different. The defendant. also disputes the plaintiff's allegation that the sum of $100,000 was paid on account, but that it was a deposit to secure additional services to be rendered by the plaintiff to Vibro (H.K.) Ltd. at the defendant's request. The defendant counterclaims for repayment of the deposit of $100, 000 and for $503,509 for the purchase of mud and rubble.

4. There is no doubt that the defendant's financial situation is weak whilst the affidavit of Mr. Chan Man Jim, one of the defendant's directors has not been wholly frank. However, in order to succeed the plaintiff must show that the defence goes beyond merely defensive proceedings. Mr . Chan cited Washoe Mining Company v Ferguson (1881) Vol. II Equity cases 371 where at page 376 Sir W. Page Wood, V.C. said:

"As to the defence, that this is a cross bill, it appears that the state of the case is this - The Plaintiff in the original suit says to the Defendant in that suit (in which the company are also Defendants): "These shares are mine, not yours." Whereupon the company file a bill against the original Plaintiff and the original Defendant, and
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