CHOW KIN MING v. ALWAYS FORTUNE LTD AND OTHERS

CHOW KIN MING v. ALWAYS FORTUNE LTD AND OTHERS

The court held that guarantees given by the 2nd and 3rd Defendants were enforceable notwithstanding MLO s.24 because the exemption in s.24(5)(a) and Schedule 1 applies to loans to companies and does not render attendant guarantees automatically unenforceable; Grantwin was rejected; no sufficient evidence of undue influence; on the factual ambiguities about the HK$160,000 deduction and the HK$48,000 interest the court declined to enter final judgment for the full sum and instead entered interlocutory judgment for HK$1,440,000 against the 2nd and 3rd Defendants and remitted specified issues to the District Court.

Citation
CHOW KIN MING v. ALWAYS FORTUNE LTD AND OTHERS
Parties
Plaintiff: Chow Kin Ming; 1st Defendant: Always Fortune Limited; 2nd Defendant: Wu Ming Fat Simon; 3rd Defendant: Chan Wai Shing Richard
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 January 2003
Case Number
HCA906/2003
Procedural Posture
Civil Debt/contract (summary Judgment and Appeal) / Appeal From Master's Order; Disposition of Summary Judgment Application and Remittal to District Court
Outcome
Appeal allowed in part; interlocutory judgment for HK$1,440,000 entered against 2nd and 3rd Defendants; remaining issues transferred to District Court for trial; no finding of undue influence.
Legal Topics
Enforceability of Guarantees, Usury/interest Limits Under MLO S.24, Summary Judgment Standards, Undue Influence, Transfer to District Court
Source Language
EN
Contract Guarantee Money Lenders Ordinance Civil Procedure Equity Enforceability of Guarantees Usury/interest Limits Under MLO S.24 Summary Judgment Standards +2 more

Case Brief

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Parties

Chow Kin Ming

Plaintiff

Always Fortune Limited

1st Defendant

Wu Ming Fat Simon

2nd Defendant

Chan Wai Shing Richard

3rd Defendant

Procedural Posture

Civil Debt/contract (summary Judgment and Appeal) / Appeal From Master's Order; Disposition of Summary Judgment Application and Remittal to District Court

Legal Issues

  1. 1 Whether the 2nd and 3rd Defendants entered enforceable guarantees
  2. 2 Whether Money Lenders Ordinance (Cap.163) s.24 renders the guarantees unenforceable
  3. 3 Whether the 3rd Defendant was induced by undue influence

Ratio Decidendi

The court held that guarantees given by the 2nd and 3rd Defendants were enforceable notwithstanding MLO s.24 because the exemption in s.24(5)(a) and Schedule 1 applies to loans to companies and does not render attendant guarantees automatically unenforceable; Grantwin was rejected; no sufficient evidence of undue influence; on the factual ambiguities about the HK$160,000 deduction and the HK$48,000 interest the court declined to enter final judgment for the full sum and instead entered interlocutory judgment for HK$1,440,000 against the 2nd and 3rd Defendants and remitted specified issues to the District Court.

Court Disposition

Appeal allowed in part; interlocutory judgment for HK$1,440,000 entered against 2nd and 3rd Defendants; remaining issues transferred to District Court for trial; no finding of undue influence.

Orders

  • Interlocutory judgment entered in favour of Plaintiff against 2nd and 3rd Defendants for HK$1,440,000
  • Interest to run from date of writ to date of judgment at 1% over prime and thereafter at the judgment rate