YIU HO MING HERMES AND OTHERS v. YIU YAN CHE

YIU HO MING HERMES AND OTHERS v. YIU YAN CHE

The court refused summary specific performance because Clause 5 is ambiguous and factual matrix evidence is lacking so it is not a plain case for summary relief; there is no causal connection between the respondents' alleged refusal to execute Thai bank documents and YYC's failure to make the 2nd instalment, and YYC has no arguable defence to the respondents' claim for HK$21,807,023.15; Master Levy's summary judgment was therefore correct and the appeal is dismissed.

Citation
YIU HO MING HERMES AND OTHERS v. YIU YAN CHE
Parties
Plaintiff (hca630) and Defendant (hca821): YIU YAN CHE; Plaintiff (hca630): TSOI KUEN; Plaintiff (hca630): YIU CHO YUEN; Plaintiff (hca630): YIU KONG YUEN; Plaintiff (hca630): TOKYO HOLDINGS LIMITED; Defendant (hca630) and Plaintiff (hca821): YIU HO MING HERMES; Defendant (hca630) and Plaintiff (hca821): YIU CHING KWAN; Defendant (hca630) and Plaintiff (hca821): YIU HO WING TERRY; Defendant (hca630) and Plaintiff (hca821): YIU CHING HEUNG; Defendant (hca630) and Plaintiff (hca821): YIU CHING HING; Defendant (hca630) and Plaintiff (hca821): YIU CHING KUM; Defendant (hca630) and Plaintiff (hca821): YIU LUCIA CHING KING; Defendant (hca630) and Plaintiff (hca821): YIU CHING LAN; Defendant (hca630) and Plaintiff (hca821): YIU CHING MAN; Defendant (hca630) and Plaintiff (hca821): CHINA EASE INVESTMENT LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 August 2009
Case Number
HCA821/2008
Procedural Posture
Civil (contract) Summary Application for Specific Performance and Appeal Against Summary Judgment / Decision on Application for Specific Performance and Appeal From Master Levy's Summary Judgment Order
Outcome
Appeal dismissed; application for specific performance refused; Master Levy's summary judgment against YYC for HK$21,807,023.15 affirmed; stay of execution of that judgment to remain effective
Legal Topics
Deed of Settlement, Specific Performance, Summary Judgment, Prevention Principle, Contract Interpretation, Costs
Source Language
EN
Contract Law Equity Civil Procedure International Banking Law Deed of Settlement Specific Performance Summary Judgment Prevention Principle +2 more

Case Brief

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Parties

YIU YAN CHE

Plaintiff (hca630) and Defendant (hca821)

TSOI KUEN

Plaintiff (hca630)

YIU CHO YUEN

Plaintiff (hca630)

YIU KONG YUEN

Plaintiff (hca630)

TOKYO HOLDINGS LIMITED

Plaintiff (hca630)

YIU HO MING HERMES

Defendant (hca630) and Plaintiff (hca821)

YIU CHING KWAN

Defendant (hca630) and Plaintiff (hca821)

YIU HO WING TERRY

Defendant (hca630) and Plaintiff (hca821)

YIU CHING HEUNG

Defendant (hca630) and Plaintiff (hca821)

YIU CHING HING

Defendant (hca630) and Plaintiff (hca821)

YIU CHING KUM

Defendant (hca630) and Plaintiff (hca821)

YIU LUCIA CHING KING

Defendant (hca630) and Plaintiff (hca821)

YIU CHING LAN

Defendant (hca630) and Plaintiff (hca821)

YIU CHING MAN

Defendant (hca630) and Plaintiff (hca821)

CHINA EASE INVESTMENT LIMITED

Defendant (hca630) and Plaintiff (hca821)

Procedural Posture

Civil (contract) Summary Application for Specific Performance and Appeal Against Summary Judgment / Decision on Application for Specific Performance and Appeal From Master Levy's Summary Judgment Order

Legal Issues

  1. 1 Whether Clause 5 of the 4th Schedule of the Deed obliges respondents to execute documents required by Thai bank
  2. 2 Whether specific performance ordering respondents to execute Thai bank documents should be granted summarily
  3. 3 Whether respondents' alleged breach prevented YYC from making the 2nd instalment payment

Ratio Decidendi

The court refused summary specific performance because Clause 5 is ambiguous and factual matrix evidence is lacking so it is not a plain case for summary relief; there is no causal connection between the respondents' alleged refusal to execute Thai bank documents and YYC's failure to make the 2nd instalment, and YYC has no arguable defence to the respondents' claim for HK$21,807,023.15; Master Levy's summary judgment was therefore correct and the appeal is dismissed.

Court Disposition

Appeal dismissed; application for specific performance refused; Master Levy's summary judgment against YYC for HK$21,807,023.15 affirmed; stay of execution of that judgment to remain effective

Orders

  • Refusal of summary order for specific performance in HCA630/2008
  • Appeal against Master Levy's summary judgment in HCA821/2008 dismissed