CHARM MASTER ENTERPRISES LTD v. GRAND T G GOLD HOLDINGS LTD AND ANOTHER

CHARM MASTER ENTERPRISES LTD v. GRAND T G GOLD HOLDINGS LTD AND ANOTHER

Summary judgment and interim payment based on the promissory notes were refused because triable disputes existed between the Plaintiff and the 2nd Defendant on presentment and the existence of the Trust; however the two letters of acknowledgement constituted a separate Acknowledgement of Debt supported by the 2nd Defendant's forbearance to sue, making the 1st Defendant's defence to that separate agreement shadowy; accordingly conditional leave to defend was granted to the 1st Defendant subject to payment into court of HK$12,000,000 within 28 days as security for the 2nd Defendant's counterclaim against the 1st Defendant.

Citation
[2020] HKCFI 2820
Parties
Plaintiff: Charm Master Enterprises Limited; 1st Defendant: Grand T G Gold Holdings Limited; 2nd Defendant: J Thomson Asset Investment Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
12 November 2020
Case Number
HCA397/2011
Procedural Posture
Civil Debt Action and Counterclaim / Application for Summary Judgment and Interim Payment; Decision on Summons Dated 17 October 2019 (hearing 27 July 2020)
Outcome
Summary judgment and interim payment denied in relation to the promissory notes; conditional leave to defend granted to the 1st Defendant on the 2nd Defendant's counterclaim subject to security paid into court.
Legal Topics
Summary Judgment, Interim Payment, Acknowledgement of Debt, Forbearance to Sue as Consideration, Constructive Trust, Indemnity, Breach of Trust
Source Language
EN
Civil Procedure Contract Trusts and Equity Commercial Law Summary Judgment Interim Payment Acknowledgement of Debt Forbearance to Sue as Consideration +3 more

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Parties

Charm Master Enterprises Limited

Plaintiff

Grand T G Gold Holdings Limited

1st Defendant

J Thomson Asset Investment Limited

2nd Defendant

Procedural Posture

Civil Debt Action and Counterclaim / Application for Summary Judgment and Interim Payment; Decision on Summons Dated 17 October 2019 (hearing 27 July 2020)

Legal Issues

  1. 1 Whether summary judgment should be entered against the 1st Defendant under Order 14 Rule 5
  2. 2 Whether interim payment or payment into court of HK$12,000,000 should be ordered under Order 29 Rule 11
  3. 3 Whether the two letters dated 31 March 2016 and 7 March 2017 constitute a separate enforceable Acknowledgement of Debt supported by consideration (forbearance)

Ratio Decidendi

Summary judgment and interim payment based on the promissory notes were refused because triable disputes existed between the Plaintiff and the 2nd Defendant on presentment and the existence of the Trust; however the two letters of acknowledgement constituted a separate Acknowledgement of Debt supported by the 2nd Defendant's forbearance to sue, making the 1st Defendant's defence to that separate agreement shadowy; accordingly conditional leave to defend was granted to the 1st Defendant subject to payment into court of HK$12,000,000 within 28 days as security for the 2nd Defendant's counterclaim against the 1st Defendant.

Court Disposition

Summary judgment and interim payment denied in relation to the promissory notes; conditional leave to defend granted to the 1st Defendant on the 2nd Defendant's counterclaim subject to security paid into court.

Orders

  • Leave granted to the 1st Defendant to defend the 2nd Defendant's counterclaim on condition that HK$12,000,000 be paid into court within 28 days as security to answer the counterclaim against the 1st Defendant
  • Costs nisi: costs of the application to be the 2nd Defendant's costs in the cause of its counterclaim against the 1st Defendant