BRIGHTFORD LTD. v. MAK KEE LTD. AND ANOTHER

BRIGHTFORD LTD. v. MAK KEE LTD. AND ANOTHER

The Master's summary judgment was set aside and conditional leave to defend was granted because, although the defendant raised potentially triable issues, those defences were late, inadequately supported by contemporaneous evidence and in some respects shadowy; fairness required preserving the defendant's right to trial only upon payment into court of the Hong Kong dollar equivalent of JPY 42,560,000 (as determined by HSBC mid-market rate on the date of judgment) within 30 days or by providing security to a Master's satisfaction.

Citation
BRIGHTFORD LTD. v. MAK KEE LTD. AND ANOTHER
Parties
Plaintiff (hca 9630/1999): Tadano South China Company Limited; 1st Defendant (hca 9630/1999) / Plaintiff (hca 16180/1998) (consolidated): Brightford Limited; 2nd Defendant (hca 9630/1999): Lam Chi Biu; 1st Defendant (hca 16180/1998): Mak Kee Limited; 2nd Defendant (hca 16180/1998): Shenzhen Mak Kee Machinery Company Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 April 2006
Case Number
HCA16180/1998
Procedural Posture
Civil — Contract/guarantee Enforcement (summary Judgment Application) / Rehearing of Order 14 RHC Summary Judgment Application in Chambers Following Master's Order
Outcome
Master's order of 5 December 2005 set aside; conditional leave to defend granted subject to payment into court or provision of security; liberty to apply; costs reserved (nisi) with specific costs directions.
Legal Topics
Order 14 RHC, Summary Judgment, Guarantee Enforcement, Undue Influence and Duress, Misrepresentation, Estoppel, Consideration, Delay and Interlocutory Relief, Security for Costs/payment Into Court
Source Language
EN
Civil Procedure Contract Law Guaranty Law Equity Order 14 RHC Summary Judgment Guarantee Enforcement Undue Influence and Duress +5 more

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Parties

Tadano South China Company Limited

Plaintiff (hca 9630/1999)

Brightford Limited

1st Defendant (hca 9630/1999) / Plaintiff (hca 16180/1998) (consolidated)

Lam Chi Biu

2nd Defendant (hca 9630/1999)

Mak Kee Limited

1st Defendant (hca 16180/1998)

Shenzhen Mak Kee Machinery Company Limited

2nd Defendant (hca 16180/1998)

Procedural Posture

Civil — Contract/guarantee Enforcement (summary Judgment Application) / Rehearing of Order 14 RHC Summary Judgment Application in Chambers Following Master's Order

Legal Issues

  1. 1 Whether the guarantor's signature gave rise to an enforceable guarantee requiring summary judgment
  2. 2 Whether the defendant raised triable issues (misrepresentation, undue influence/duress, forgery, estoppel, want of consideration) sufficient to defeat an Order 14 application
  3. 3 Whether prior proceedings and conduct constituted demand for payment

Ratio Decidendi

The Master's summary judgment was set aside and conditional leave to defend was granted because, although the defendant raised potentially triable issues, those defences were late, inadequately supported by contemporaneous evidence and in some respects shadowy; fairness required preserving the defendant's right to trial only upon payment into court of the Hong Kong dollar equivalent of JPY 42,560,000 (as determined by HSBC mid-market rate on the date of judgment) within 30 days or by providing security to a Master's satisfaction.

Court Disposition

Master's order of 5 December 2005 set aside; conditional leave to defend granted subject to payment into court or provision of security; liberty to apply; costs reserved (nisi) with specific costs directions.

Orders

  • Master's order dated 5 December 2005 set aside
  • Leave to defend granted on condition that Mr Lam pays into court within 30 days an amount in Hong Kong dollars equal to JPY 42,560,000 as determined by HSBC mid-market rate on date of judgment, or otherwise gives security to the satisfaction of a Master