LAI SIN TONG THOMAS v. TRILEASE INTERNATIONAL LTD. AND ANOTHER

LAI SIN TONG THOMAS v. TRILEASE INTERNATIONAL LTD. AND ANOTHER

No implied term existed that Trilease must repossess or otherwise realise the leased machinery before calling on the guarantor; the continuing guarantee expressly allowed Trilease to pursue guarantors without first enforcing remedies against the lessee; the leased machinery remained the lessor's property and was not security to be protected for the guarantor; accordingly Trilease owed no contractual or equitable duty to Mr Lai to preserve or recover the machinery before enforcing the guarantee; the cheque of HK$248,394.72 was a gesture of goodwill/part payment and Trilease was entitled to apply it to the indebtedness.

Citation
LAI SIN TONG THOMAS v. TRILEASE INTERNATIONAL LTD. AND ANOTHER
Parties
Plaintiff (hca 9069/1999); 2nd Defendant (hca 9126/1999): LAI SIN TONG, THOMAS; Plaintiff (hca 9126/1999); 1st Defendant (hca 9069/1999): TRILEASE INTERNATIONAL LIMITED; 1st Defendant (hca 9069/1999); 1st Defendant (hca 9126/1999): KINSLEY LIMITED; 2nd Defendant (hca 9069/1999); 3rd Defendant (hca 9126/1999): CHAN CHEUNG LIT
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 November 2000
Case Number
HCA9069/1999
Procedural Posture
Consolidated Civil Actions to Enforce a Continuing Guarantee and to Recover Payments Under a Conditional Settlement Offer / Judgment at Trial (court of First Instance)
Outcome
Judgment for Trilease; guarantor (Mr Lai) liable subject to calculation set out; Mr Lai's claim to recover HK$248,394.72 dismissed; costs nisi
Legal Topics
Guarantee, Suretyship, Lease of Chattels, Repossession of Goods, Implied Terms, Tender and Acceptance of Settlement Offers, Interest and Costs
Source Language
EN
Contract Law Equity Commercial Law Civil Procedure Guarantee Suretyship Lease of Chattels Repossession of Goods +3 more

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Parties

LAI SIN TONG, THOMAS

Plaintiff (hca 9069/1999); 2nd Defendant (hca 9126/1999)

TRILEASE INTERNATIONAL LIMITED

Plaintiff (hca 9126/1999); 1st Defendant (hca 9069/1999)

KINSLEY LIMITED

1st Defendant (hca 9069/1999); 1st Defendant (hca 9126/1999)

CHAN CHEUNG LIT

2nd Defendant (hca 9069/1999); 3rd Defendant (hca 9126/1999)

Procedural Posture

Consolidated Civil Actions to Enforce a Continuing Guarantee and to Recover Payments Under a Conditional Settlement Offer / Judgment at Trial (court of First Instance)

Legal Issues

  1. 1 Whether an implied term existed that creditor must exhaust remedies against lessee and preserve/realise leased chattels before calling on guarantor
  2. 2 Whether a creditor owes an equitable duty to protect a surety by preserving security and making it available to the surety
  3. 3 Whether Trilease breached any contractual or equitable duty by not repossessing machinery removed to Mainland China

Ratio Decidendi

No implied term existed that Trilease must repossess or otherwise realise the leased machinery before calling on the guarantor; the continuing guarantee expressly allowed Trilease to pursue guarantors without first enforcing remedies against the lessee; the leased machinery remained the lessor's property and was not security to be protected for the guarantor; accordingly Trilease owed no contractual or equitable duty to Mr Lai to preserve or recover the machinery before enforcing the guarantee; the cheque of HK$248,394.72 was a gesture of goodwill/part payment and Trilease was entitled to apply it to the indebtedness.

Court Disposition

Judgment for Trilease; guarantor (Mr Lai) liable subject to calculation set out; Mr Lai's claim to recover HK$248,394.72 dismissed; costs nisi

Orders

  • HCA 9126/1999: Judgment for the plaintiff (Trilease International Limited) against the 2nd defendant (Mr Lai Sin Tong, Thomas) in the sum of HK$918,113.54 together with interest from today until payment at the judgment rate.
  • Costs in HCA 9126/1999: Costs nisi at first instance to the plaintiff, taxed if not agreed.