RE HAN, CATHERINE (韓熙庭, formerly known as 韓文虹)

RE HAN, CATHERINE (韓熙庭, formerly known as 韓文虹)

The court found on the evidence (notarial certificate and transcript) that the Debtor voluntarily and with informed consent executed the guarantee in her personal capacity; there was no sufficient evidence of undue influence and the incorrect corporate form does not extinguish her personal liability; accordingly there is no bona fide dispute on substantial grounds to defeat the petition and summary procedure is appropriate.

Citation
[2019] HKCFI 2274
Parties
Creditor: Petitioner; Guarantor/debtor: Debtor; Borrower: Borrower
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 September 2019
Case Number
HCB1612/2019
Procedural Posture
Bankruptcy Petition / Petition Hearing/decision
Outcome
Petition upheld in favour of the Petitioner; Debtor held personally liable on the Guarantee
Legal Topics
Bona Fide Dispute on Substantial Grounds, Construction of Guarantee, Notarial Evidence, Standard of Proof for Undue Influence, Form Versus Substance of Contracts
Source Language
EN
Bankruptcy Guarantee Contract Law Undue Influence Civil Procedure Bona Fide Dispute on Substantial Grounds Construction of Guarantee Notarial Evidence +2 more

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Parties

Petitioner

Creditor

Debtor

Guarantor/debtor

Borrower

Borrower

Procedural Posture

Bankruptcy Petition / Petition Hearing/decision

Legal Issues

  1. 1 Whether the debtor has demonstrated a bona fide dispute on substantial grounds to resist the petition
  2. 2 Whether the guarantor signed the guarantee under undue influence
  3. 3 Whether execution of a guarantee on a corporate form absolves personal liability where guarantor signed in personal capacity

Ratio Decidendi

The court found on the evidence (notarial certificate and transcript) that the Debtor voluntarily and with informed consent executed the guarantee in her personal capacity; there was no sufficient evidence of undue influence and the incorrect corporate form does not extinguish her personal liability; accordingly there is no bona fide dispute on substantial grounds to defeat the petition and summary procedure is appropriate.

Court Disposition

Petition upheld in favour of the Petitioner; Debtor held personally liable on the Guarantee

Orders

  • Petition granted
  • Debtor to pay outstanding principal, outstanding interests and outstanding damages to the Petitioner