SUCCESS FOREVER ENTERPRISES LTD AND ANOTHER v. JUMBO UP GROUP LTD AND OTHERS

SUCCESS FOREVER ENTERPRISES LTD AND ANOTHER v. JUMBO UP GROUP LTD AND OTHERS

Defendants admitted breach and failed to particularise or produce evidence showing any triable issue; legal principles permit a mortgagee/chargee to pursue remedies and claim sums due without first surrendering or foreclosing security; guarantor liability is independent; absence of evidence that forfeiture was penal or unreasonable defeats that defence; accordingly summary judgment was appropriate and is granted on the pleaded claims.

Citation
SUCCESS FOREVER ENTERPRISES LTD AND ANOTHER v. JUMBO UP GROUP LTD AND OTHERS
Parties
1st Plaintiff: Success Forever Enterprises Limited; 2nd Plaintiff: Rich Shine Investments Limited; 1st Defendant: Jumbo Up Group Limited; 2nd Defendant: Union Rich Investments Limited; 3rd Defendant: Liu Yi Fang; 4th Defendant: Jungle Eagle Limited; 5th Defendant: Statesmart Investments Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 April 2013
Case Number
HCA1189/2012
Procedural Posture
Contract / Security / Guarantee Dispute; Summary Judgment Application Under Order 86 RHC / Summary Judgment Hearing and Judgment (order 86 Rhc)
Outcome
Summary judgment granted in favour of plaintiffs in terms of the draft Minutes of Order dated 12 September 2012
Legal Topics
Breach of Contract, Summary Judgment, Forfeiture of Deposit, Mortgagee Remedies, Guarantee Liability, Valuation Dispute, Mitigation of Loss, Penalty Clause Challenge
Source Language
EN
Contract Law Mortgage / Security Guarantee Law Civil Procedure Breach of Contract Summary Judgment Forfeiture of Deposit Mortgagee Remedies +4 more

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Parties

Success Forever Enterprises Limited

1st Plaintiff

Rich Shine Investments Limited

2nd Plaintiff

Jumbo Up Group Limited

1st Defendant

Union Rich Investments Limited

2nd Defendant

Liu Yi Fang

3rd Defendant

Jungle Eagle Limited

4th Defendant

Statesmart Investments Limited

5th Defendant

Procedural Posture

Contract / Security / Guarantee Dispute; Summary Judgment Application Under Order 86 RHC / Summary Judgment Hearing and Judgment (order 86 Rhc)

Legal Issues

  1. 1 Whether summary judgment was appropriate on admitted liability and disputed quantum/valuation
  2. 2 Whether Success as chargee/mortgagee can enforce remedies and sue for sums without first surrendering or foreclosing charged shares
  3. 3 Whether Success was entitled to forfeit the HK$100,000,000 deposits or whether forfeiture was penal/unreasonable

Ratio Decidendi

Defendants admitted breach and failed to particularise or produce evidence showing any triable issue; legal principles permit a mortgagee/chargee to pursue remedies and claim sums due without first surrendering or foreclosing security; guarantor liability is independent; absence of evidence that forfeiture was penal or unreasonable defeats that defence; accordingly summary judgment was appropriate and is granted on the pleaded claims.

Court Disposition

Summary judgment granted in favour of plaintiffs in terms of the draft Minutes of Order dated 12 September 2012

Orders

  • Declaration that the Agreement is terminated and that Success Forever Enterprises Limited is discharged from further performance under the Agreement
  • Declaration that Success Forever Enterprises Limited was entitled to forfeit the initial and further deposits of HK$100,000,000