Lui Chi Yuen v Kingsway Cars Service Ltd

CourtDistrict Court (Hong Kong)
Judgment Date13 June 2008
Judgement NumberDCCJ5066/2007
Subject MatterCivil Action
DCCJ005066/2007 LUI CHI YUEN v. KINGSWAY CARS SERVICE LTD

DCCJ 5066/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5066 OF 2007

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BETWEEN
LUI CHI YUEN Plaintiff
and
KINGSWAY CARS SERVICE LIMITED Defendant

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Coram: HH Judge Lok in Chambers

Dates of Hearing: 19 March & 23 April 2008

Date of Decision: 23 April 2008

Date of handing down of Reasons for Decision: 13 June 2008

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REASONS FOR DECISION

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1. This is an application by the Plaintiff for a determination by the court on questions of law pursuant to O. 14A of the Rules of the District Court, Cap. 336. In the hearing on 23 April 2008, I dismissed the application and made an order for speedy trial of this action. I now give my reasons.

Background of the application

2. The parties have no serious dispute about the basic facts of this case. At all material time, the Plaintiff is and was the registered owner of a Lotus Exige private car bearing the registration number ME3935 (“the Car”), and the Defendant is and was the sole agent for the Lotus brand vehicles in Hong Kong responsible for the after-sales services including repair and maintenance services.

3. Some time in July 2006, the Car was involved in an accident, and upon the request of one Mr. David Lee (“Mr. Lee”), the Car was towed to the Defendant’s workshop for repair. The repair work took some time. On or about 3 May 2007, Mr. Lee drew and handed a cheque in the sum of $122,138 to the Defendant (“the Cheque”) in purported payment of the repair costs of the Car, and the Defendant delivered the Car to Mr. Lee upon the receipt of the Cheque. However, the amount in words on the Cheque did not correspond with the amount in figure, and so the Defendant was not able to obtain payment under the Cheque. On or about 17 May 2007, the Plaintiff returned the Car to the Defendant for repairing the air-condition ventilation of the Car. The Defendant claims that it had informed the Plaintiff about the non-payment of the earlier repair costs, but the Plaintiff nevertheless handed the Car to the Defendant for the additional repair work. As such work could not be completed within a short period of time, the Plaintiff, on or about 24 May 2007, requested the Defendant to return the Car to him, but the Defendant refused to do so unless the Plaintiff paid for the costs of the earlier repair work. Unfortunately, the parties failed to settle their dispute, and the Car has been retained by the Defendant until now.

4. The Defendant parted possession with the Car in May 2007, but it later regained possession of the same. The central issue in the present case is, therefore, whether the Defendant could, under such circumstances, exercise the right of lien over the Car in respect of the earlier unpaid repair work requested by Mr. Lee.

5. In this application, the Plaintiff lists out the following questions for determination by the court:

“(a) Whether the Defendant’s lien on the [Car] was extinguished by parting with possession, if a third party obtained the Car from the Defendant with a dishonoured cheque; and

(b) Whether the Defendant was entitled to resurrect the lien when the Plaintiff returned the Car to the Defendant to remedy certain defects.”

The Plaintiff also asks the court to grant final judgment against the Defendant for delivery of the Car and damages for conversion if the court answers the question in (a) in the affirmative and the question in (b) in the negative.

The law

6. Before I proceed to deal with this application, one must understand that there are 2 kinds of legal lien: general lien...

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