Kwong Cheung (A Firm) v Chan Yuen T/a Chan Yuen Kee

Court:District Court (Hong Kong)
Judgement Number:DCCJ1622/1970
Judgment Date:15 Jul 1970
DCCJ001622/1970 KWONG CHEUNG (A FIRM) v. CHAN YUEN t/a CHAN YUEN KEE

DCCJ001622/1970

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 1622 OF 1970

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BETWEEN
KWONG CHEUNG (a firm) Plaintiff
AND
CHAN YUEN trading as CHAN YUEN KEE Defendant

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Coram: N.B. Hooper, D.J. in Court

Date of Judgment: 15 July 1970

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RULING

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1. The parties have agreed that this Court should determine first of all the following issue:-

"Whether the alleged agreement by the creditors on the 29th August, 1969, to accept 42 per cent of their claims in full and final settlement should preclude the plaintiff from recovering the amount claimed in this case, assuming for the moment that that sum was owed by the defendant to the plaintiff at that particular time."

2. It is common ground in this case that on the 29th August, there was a meeting of the defendant's creditors at which meeting the plaintiff and the defendant were present. It is further common ground that at this meeting all the creditors present, including the plaintiff, agreed to accept a payment of 42 per cent in full and final settlement of the trade debts registered by them.

3. It is the plaintiff's case that, because he did not register a particular debt at this meeting, he is not limited in his claim against the defendant by the agreement to accept only 42 per cent. He claims that prior to the meeting he had made a secret arrangement with the defendant, whereby the defendant promised that he would pay this unregistered debt in full.

4. It would appear from the evidence of the plaintiff that he had also prior to the creditors' meeting, with the full approval of the defendant, repossessed himself of goods which he had previously sold to the defendant. He was obviously out to reduce as far as possible before he went to that meeting, the debts which the defendant owed his firm.

5. Now it is true to say that the plaintiff has been at pains to point out to this Court that this was not a properly constituted creditors' meeting, and that no statement of account showing the defendant's assets and liabilities was ever produced. He testified in respect of the percentage of 42 per cent, "It is not derived by calculation, it was a mere mental statement by all of us."

6. This is a very difficult statement to accept and it is clear to me that the plaintiff is not being truthful in this respect, for in answer to the Court earlier on the question as to whether the agreement to accept 42 per cent was agreed by all the parties present, that is the defendant and all the creditors, he said, "Yes, this is calculated from...

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