CITIBANK N.A. v. DAYARAM NANIK AND ANOTHER

CITIBANK N.A. v. DAYARAM NANIK AND ANOTHER

The court admitted the affirmation of Keoy Soo Khim and accompanying documents relevant to the factual matrix (including copies of the 2001 facility letter and supplemental facility letters and the Trade and Industry Department leaflet) because the plaintiff satisfied the first Ladd v Marshall limb as to those documents given the last‑minute nature of the defendants' construction point; however the plaintiff failed to show reasonable diligence in procuring the certificate of indebtedness (exhibit KSK‑4), which was therefore excluded; costs nisi awarded to the plaintiff.

Citation
CITIBANK N.A. v. DAYARAM NANIK AND ANOTHER
Parties
Plaintiff: Citibank N.A.; 1st Defendant: Dayaram Nanik; 2nd Defendant: Days Impex Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 March 2013
Case Number
HCA2145/2011
Procedural Posture
Civil Action Concerning Guarantees and Summary Judgment Application / Application for Leave to Adduce Further Evidence on Appeal From Master's Refusal of Summary Judgment
Outcome
Leave granted to adduce further evidence in the appeal except for exhibit KSK-4; order nisi for costs in favour of the plaintiff.
Legal Topics
Summary Judgment, Admission of Fresh Evidence on Appeal, Construction of Guarantees, Authority to Execute Corporate Documents, Ultra Vires, Quantum, Order 58 Rule 1(5), Ladd V Marshall Tests
Source Language
EN
Civil Procedure Contract Commercial Law Banking and Finance Summary Judgment Admission of Fresh Evidence on Appeal Construction of Guarantees Authority to Execute Corporate Documents +4 more

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Parties

Citibank N.A.

Plaintiff

Dayaram Nanik

1st Defendant

Days Impex Limited

2nd Defendant

Procedural Posture

Civil Action Concerning Guarantees and Summary Judgment Application / Application for Leave to Adduce Further Evidence on Appeal From Master's Refusal of Summary Judgment

Legal Issues

  1. 1 Whether fresh evidence should be admitted on appeal under Order 58 r 1(5) applying Ladd v Marshall conditions
  2. 2 Whether the plaintiff acted with reasonable diligence in obtaining the new evidence
  3. 3 Whether the construction point advanced by defendants could properly be considered without the 2001 facility letter

Ratio Decidendi

The court admitted the affirmation of Keoy Soo Khim and accompanying documents relevant to the factual matrix (including copies of the 2001 facility letter and supplemental facility letters and the Trade and Industry Department leaflet) because the plaintiff satisfied the first Ladd v Marshall limb as to those documents given the last‑minute nature of the defendants' construction point; however the plaintiff failed to show reasonable diligence in procuring the certificate of indebtedness (exhibit KSK‑4), which was therefore excluded; costs nisi awarded to the plaintiff.

Court Disposition

Leave granted to adduce further evidence in the appeal except for exhibit KSK-4; order nisi for costs in favour of the plaintiff.

Orders

  • Affirmation of Keoy Soo Khim and accompanying exhibits (other than exhibit KSK-4) admitted as further evidence on the appeal.
  • Exhibit KSK-4 (certificate of indebtedness) excluded.