HUNG CHEN, RICHAEL v. TOECA NATIONAL RESOURCES B V AND OTHERS

HUNG CHEN, RICHAEL v. TOECA NATIONAL RESOURCES B V AND OTHERS

Contemporaneous documentary evidence and credible oral testimony established that Hung understood and signed the Disputed Documents; his non est factum and misrepresentation defences failed. The HK$20m and HK$33m payments were part payments of the agreed fee to Wan/Baron. No enforceable oral sale of 100m shares to Wan at HK$0.99 was proved. Toeca served notice "as soon as practicable" in the factual matrix, triggering Baron Capital and Wan's liabilities under the Placing Agreement. Therefore Hung's claims were dismissed and Toeca's contractual claims were allowed, with monetary awards and costs ordered accordingly.

Citation
HUNG CHEN, RICHAEL v. TOECA NATIONAL RESOURCES B V AND OTHERS
Parties
Plaintiff (hca 1683/2009): Hung Chen, Richael; 1st Defendant (hca 1683/2009); Plaintiff (hca 1913/2009): Toeca National Resources B V; 2nd Defendant (hca 1683/2009); 1st Defendant (hca 1913/2009): Baron Capital Limited; 3rd Defendant (hca 1683/2009); 2nd Defendant (hca 1913/2009): Wan Chuen Chung, Joseph; 4th Defendant (hca 1683/2009): Baron International Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 February 2013
Case Number
HCA1683/2009
Procedural Posture
Civil Commercial Dispute (contracts, Securities, Guarantees) / Judgment at First Instance (court of First Instance)
Outcome
Hearing allowed in part for defendants/Toeca; plaintiff's (Hung) claims dismissed; Toeca's counterclaim allowed; orders nisi made for costs
Legal Topics
Put Option/procurement Agreement, Placing Agreement, Shortfall Guarantee, Non Est Factum, Contract Interpretation, Entire Agreement Clause, Rescission for Misrepresentation, Costs
Source Language
EN
Contract Law Equity Company/securities Law Tort (misrepresentation) Put Option/procurement Agreement Placing Agreement Shortfall Guarantee Non Est Factum +4 more

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Parties

Hung Chen, Richael

Plaintiff (hca 1683/2009)

Toeca National Resources B V

1st Defendant (hca 1683/2009); Plaintiff (hca 1913/2009)

Baron Capital Limited

2nd Defendant (hca 1683/2009); 1st Defendant (hca 1913/2009)

Wan Chuen Chung, Joseph

3rd Defendant (hca 1683/2009); 2nd Defendant (hca 1913/2009)

Baron International Limited

4th Defendant (hca 1683/2009)

Procedural Posture

Civil Commercial Dispute (contracts, Securities, Guarantees) / Judgment at First Instance (court of First Instance)

Legal Issues

  1. 1 Whether the Disputed Documents signed by Hung are binding
  2. 2 Whether Hung can avoid documents by non est factum
  3. 3 Whether the Disputed Documents were induced by fraudulent or negligent misrepresentation

Ratio Decidendi

Contemporaneous documentary evidence and credible oral testimony established that Hung understood and signed the Disputed Documents; his non est factum and misrepresentation defences failed. The HK$20m and HK$33m payments were part payments of the agreed fee to Wan/Baron. No enforceable oral sale of 100m shares to Wan at HK$0.99 was proved. Toeca served notice "as soon as practicable" in the factual matrix, triggering Baron Capital and Wan's liabilities under the Placing Agreement. Therefore Hung's claims were dismissed and Toeca's contractual claims were allowed, with monetary awards and costs ordered accordingly.

Court Disposition

Hearing allowed in part for defendants/Toeca; plaintiff's (Hung) claims dismissed; Toeca's counterclaim allowed; orders nisi made for costs

Orders

  • HCA 1683/2009: Plaintiff Hung's claims dismissed
  • Order nisi that Hung pay costs of HCA 1683/2009 on an indemnity basis with certificate for two counsel