DBS BANK (HONG KONG) LTD v. EXCELLENT ACCOUNTING AND SECRETARIAL LTD AND ANOTHER

DBS BANK (HONG KONG) LTD v. EXCELLENT ACCOUNTING AND SECRETARIAL LTD AND ANOTHER

The court found the impugned representations were statements of intention and Lo failed to prove she relied on them so as to establish misrepresentation, but accepted Lo's evidence of an oral indemnity and the contemporaneous evidence showing Yim was the de facto controller; accordingly Yim is liable to indemnify Lo for the sums found due to the bank under the prior judgment.

Citation
[2024] HKDC 2153
Parties
Plaintiff (original Action): DBS Bank (Hong Kong) Limited; 1st Defendant (original Action): Excellent Accounting and Secretarial Limited; 2nd Defendant (original Action) and Plaintiff (counterclaim): Lo Hoi Yan Helen; 2nd Defendant (counterclaim): Yim Chun Wai
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
27 December 2024
Case Number
DCCJ3085/2019
Procedural Posture
Civil Action: Banking/guarantee Dispute With Counterclaim for Indemnity and Misrepresentation / Judgment at Trial on Counterclaim
Outcome
Judgment for counterclaimant Lo; Yim ordered to indemnify Lo for sums due under the prior bank judgment and to pay Lo's costs.
Legal Topics
Guarantee and Indemnity, Misrepresentation (false Statements of Intention), Nominee Director and De Facto Controller, Duty to Indemnify, Evidence and Witness Credibility
Source Language
EN
Contract Tort Equity Banking Law Company Law Guarantee and Indemnity Misrepresentation (false Statements of Intention) Nominee Director and De Facto Controller +2 more

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Parties

DBS Bank (Hong Kong) Limited

Plaintiff (original Action)

Excellent Accounting and Secretarial Limited

1st Defendant (original Action)

Lo Hoi Yan Helen

2nd Defendant (original Action) and Plaintiff (counterclaim)

Yim Chun Wai

2nd Defendant (counterclaim)

Procedural Posture

Civil Action: Banking/guarantee Dispute With Counterclaim for Indemnity and Misrepresentation / Judgment at Trial on Counterclaim

Legal Issues

  1. 1 Whether representations made by Yim amounted to actionable misrepresentation
  2. 2 Whether Lo relied on and was induced by any misrepresentation
  3. 3 Whether an enforceable indemnity agreement (oral or implied) arose between Yim and Lo

Ratio Decidendi

The court found the impugned representations were statements of intention and Lo failed to prove she relied on them so as to establish misrepresentation, but accepted Lo's evidence of an oral indemnity and the contemporaneous evidence showing Yim was the de facto controller; accordingly Yim is liable to indemnify Lo for the sums found due to the bank under the prior judgment.

Court Disposition

Judgment for counterclaimant Lo; Yim ordered to indemnify Lo for sums due under the prior bank judgment and to pay Lo's costs.

Orders

  • Yim shall indemnify Lo against the Judgment Sum against Lo and any other amounts due under the Judgment dated 19 January 2023.
  • Yim shall pay the costs of this action to Lo, to be taxed if not agreed.