DAH SING BANK LTD v. SUN CREATE RICHLY HOLDINGS (ASIA) LTD AND ANOTHER

DAH SING BANK LTD v. SUN CREATE RICHLY HOLDINGS (ASIA) LTD AND ANOTHER

Summary judgment was entered for the Plaintiff against the 1st Defendant for repayment of the sums claimed and delivery of vacant possession of the mortgaged property because the plaintiff produced sufficient prima facie evidence of the indebtedness and interest calculations and there was no triable defence by D1;...

Source-derived case information.

Citation
[2024] HKCFI 1512
Parties
Plaintiff: Dah Sing Bank Limited; 1st Defendant: Sun Create Richly Holdings (Asia) Limited; 2nd Defendant: Qi Tao
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 June 2024
Case Number
HCMP457/2023
Procedural Posture
Mortgage Enforcement Originating Summons Under Order 88 (rules of the High Court, Cap.4 A) / Substantive Hearing on Originating Summons; Judgment Delivered on Summary Determination Application
Outcome
Judgment granted for Plaintiff against 1st Defendant for recovery of sums and delivery of possession; claims against 2nd Defendant dismissed for summary judgment and to proceed to trial on triable issues of misrepresentation.
Legal Topics
Summary Judgment, Misrepresentation, Non Est Factum, Interest Calculation, Possession, Mortgage Enforcement, Burden of Proof
Source Language
en
Banking Law Mortgage Law Contract Law Civil Procedure Guarantee Law Equity Summary Judgment Misrepresentation +5 more

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Parties

Dah Sing Bank Limited

Plaintiff

Sun Create Richly Holdings (Asia) Limited

1st Defendant

Qi Tao

2nd Defendant

Procedural Posture

Mortgage Enforcement Originating Summons Under Order 88 (rules of the High Court, Cap.4 A) / Substantive Hearing on Originating Summons; Judgment Delivered on Summary Determination Application

Legal Issues

  1. 1 Whether plaintiff established entitlement to summary judgment against the 1st Defendant under Order 88
  2. 2 Whether statutory evidential requirements of RHC Order 88 rule 5 were satisfied or excused in a commercial mortgage case
  3. 3 Whether the 2nd Defendant has raised a triable issue of misrepresentation and/or non est factum

Ratio Decidendi

Summary judgment was entered for the Plaintiff against the 1st Defendant for repayment of the sums claimed and delivery of vacant possession of the mortgaged property because the plaintiff produced sufficient prima facie evidence of the indebtedness and interest calculations and there was no triable defence by D1; the claim against the 2nd Defendant (guarantor) was dismissed from summary determination because D2 raised a triable issue of misrepresentation (oral assurances by a bank officer) that required trial; costs orders and procedural timetables were imposed accordingly.

Court Disposition

Judgment granted for Plaintiff against 1st Defendant for recovery of sums and delivery of possession; claims against 2nd Defendant dismissed for summary judgment and to proceed to trial on triable issues of misrepresentation.

Orders

  • Judgment in terms of paragraphs 1 and 2 of the relief sought against the 1st Defendant in the Originating Summons (payment of sums claimed and delivery of vacant possession)
  • Order nisi of costs in favour of the Plaintiff against the 1st Defendant with certificate for counsel on an indemnity basis; costs to be summarily assessed and payable forthwith