CLEVER BOY LTD AND ANOTHER v. SUM KWOK HANG AND ANOTHER

CLEVER BOY LTD AND ANOTHER v. SUM KWOK HANG AND ANOTHER

On the balance of probabilities the 2nd defendant did not agree to be guarantor and the plaintiffs failed to prove she was party to the alleged agreement or that the HKID signature proved consent; although plaintiffs proved a total failure of consideration in respect of HK$1,400,000, the 2nd defendant was not personally enriched because she had surrendered control of her HSBC account to her brother and received funds in a ministerial/agency capacity, so restitution against her fails; change of position defence was not made out.

Citation
[2023] HKCFI 959
Parties
1st Plaintiff: Clever Boy Limited; 2nd Plaintiff: Ko Siu Keung; 1st Defendant: Sum Kwok Hang; 2nd Defendant: Sum Wing Mui, Vivien
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 April 2023
Case Number
HCA2921/2017
Procedural Posture
Civil Claim for Repayment of Loan and Guarantee; Alternative Claim in Unjust Enrichment / Trial Judgment (court of First Instance)
Outcome
Plaintiffs' claims against the 2nd defendant dismissed; costs to follow the event; costs order nisi made in favour of the 2nd defendant.
Legal Topics
Guarantee, Forgery of Signature, Ministerial Receipt (agent Defence), Change of Position Defence, Default Judgment and Set Aside, Res Judicata/estoppel, Adducing Further Evidence
Source Language
EN
Contract Restitution/unjust Enrichment Civil Procedure Evidence Agency/trust Guarantee Forgery of Signature Ministerial Receipt (agent Defence) +4 more

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Parties

Clever Boy Limited

1st Plaintiff

Ko Siu Keung

2nd Plaintiff

Sum Kwok Hang

1st Defendant

Sum Wing Mui, Vivien

2nd Defendant

Procedural Posture

Civil Claim for Repayment of Loan and Guarantee; Alternative Claim in Unjust Enrichment / Trial Judgment (court of First Instance)

Legal Issues

  1. 1 Whether the alleged tri‑party agreement of 15 February 2012 bound the 2nd defendant as guarantor
  2. 2 Whether the signature on the copy of the 2nd defendant's HKID was genuine or forged
  3. 3 Whether the 2nd defendant is liable in unjust enrichment for HK$1,400,000 paid into her bank account

Ratio Decidendi

On the balance of probabilities the 2nd defendant did not agree to be guarantor and the plaintiffs failed to prove she was party to the alleged agreement or that the HKID signature proved consent; although plaintiffs proved a total failure of consideration in respect of HK$1,400,000, the 2nd defendant was not personally enriched because she had surrendered control of her HSBC account to her brother and received funds in a ministerial/agency capacity, so restitution against her fails; change of position defence was not made out.

Court Disposition

Plaintiffs' claims against the 2nd defendant dismissed; costs to follow the event; costs order nisi made in favour of the 2nd defendant.

Orders

  • Claims against 2nd defendant dismissed
  • Costs should follow the event