LI KWAN FUNG YEE, BRENDA AND ANOTHER v. HKSC FOODS LTD AND ANOTHER

LI KWAN FUNG YEE, BRENDA AND ANOTHER v. HKSC FOODS LTD AND ANOTHER

On the evidence (witness testimony, contemporaneous documents and the prior winding up judgment) the court found as a fact that an oral joint venture was made and that the 2nd defendant agreed to guarantee the 1st defendant's liability; the asserted debt of A$309,421.27 was proven; the defendant's bare denials and failure to present a positive defence or attend trial justified an adverse inference; accordingly judgment was entered for the plaintiff against the 2nd defendant for the claimed sum with interest and costs.

Citation
LI KWAN FUNG YEE, BRENDA AND ANOTHER v. HKSC FOODS LTD AND ANOTHER
Parties
1st Plaintiff: LI KWAN FUNG YEE, BRENDA; 2nd Plaintiff: BASHAN LIMITED; 1st Defendant: HKSC FOODS LIMITED; 2nd Defendant: O DEA PETER JOHN
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 April 2012
Case Number
HCA1683/2008
Procedural Posture
Civil Action Guarantee/debt Claim (high Court, Court of First Instance) / Judgment After Trial (defendant Absent)
Outcome
Judgment for 1st plaintiff against 2nd defendant
Legal Topics
Personal Guarantee, Oral Joint Venture Agreement, Bridging Finance, Adverse Inference From Non‑attendance/failure to Plead, Effect of Winding Up Judgment
Source Language
EN
Contract Guarantee Debt Recovery Civil Procedure Insolvency (winding Up Relevance) Personal Guarantee Oral Joint Venture Agreement Bridging Finance +2 more

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Parties

LI KWAN FUNG YEE, BRENDA

1st Plaintiff

BASHAN LIMITED

2nd Plaintiff

HKSC FOODS LIMITED

1st Defendant

O DEA PETER JOHN

2nd Defendant

Procedural Posture

Civil Action Guarantee/debt Claim (high Court, Court of First Instance) / Judgment After Trial (defendant Absent)

Legal Issues

  1. 1 Whether the 2nd defendant gave a personal guarantee for the 1st defendant's liability under the JV agreement
  2. 2 Whether the 2nd defendant is liable to pay A$309,421.27 to the 1st plaintiff
  3. 3 Whether an oral guarantee is enforceable under Hong Kong law in these circumstances

Ratio Decidendi

On the evidence (witness testimony, contemporaneous documents and the prior winding up judgment) the court found as a fact that an oral joint venture was made and that the 2nd defendant agreed to guarantee the 1st defendant's liability; the asserted debt of A$309,421.27 was proven; the defendant's bare denials and failure to present a positive defence or attend trial justified an adverse inference; accordingly judgment was entered for the plaintiff against the 2nd defendant for the claimed sum with interest and costs.

Court Disposition

Judgment for 1st plaintiff against 2nd defendant

Orders

  • Judgment entered against the 2nd defendant in terms of paragraphs (1) and (2) of the prayer in the Amended Statement of Claim (A$309,421.27 and further interest at the agreed rate of 11% per annum)
  • 2nd defendant to pay all costs of and occasioned by this action (including any previously reserved costs)