CHINA CITIC BANK INTERNATIONAL LTD v. CHEUK SHUK HING AND OTHERS

CHINA CITIC BANK INTERNATIONAL LTD v. CHEUK SHUK HING AND OTHERS

Because the 1st Defendant declined to give evidence and there was no admissible evidence supporting fraud, undue influence or non est factum, and because documentary evidence and witness testimony established that the 1st Defendant understood and executed an all‑monies mortgage without the Bank having notice of any fraud, the defences fail; the Bank proved liability and quantum (HKD 55,806,460.44) and is entitled to judgement, possession and indemnity costs; the counterclaim is dismissed and no certificate for two counsel is granted.

Citation
[2022] HKCFI 3646
Parties
Plaintiff (original Claim): China CITIC Bank International Limited; 1st Defendant (original Claim); Plaintiff (counterclaim): Cheuk Shuk Hing; 2nd Defendant (original Claim): Smart Tide Limited; 3rd Defendant (original Claim): Timeway Technology Limited; 4th Defendant (original Claim); 1st Defendant (counterclaim): Li Hiu Yung; 5th Defendant (original Claim): Timeway Innovation Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
6 December 2022
Case Number
HCMP1447/2019
Procedural Posture
Order 88 Originating Summons Mortgage Enforcement and Counterclaim / Trial Judgment
Outcome
Judgment for Plaintiff against 1st Defendant for HKD 55,806,460.44; possession of the mortgaged property; counterclaim dismissed; costs on indemnity basis awarded to Plaintiff; no certificate for two counsel granted.
Legal Topics
Enforceability of Mortgage, Possession, Undue Influence, Non Est Factum, Fraudulent Misrepresentation, Indemnity Costs, Certificate for Counsel
Source Language
EN
Contract Property Equity Mortgages Fraud Costs Enforceability of Mortgage Possession +5 more

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Parties

China CITIC Bank International Limited

Plaintiff (original Claim)

Cheuk Shuk Hing

1st Defendant (original Claim); Plaintiff (counterclaim)

Smart Tide Limited

2nd Defendant (original Claim)

Timeway Technology Limited

3rd Defendant (original Claim)

Li Hiu Yung

4th Defendant (original Claim); 1st Defendant (counterclaim)

Timeway Innovation Limited

5th Defendant (original Claim)

Procedural Posture

Order 88 Originating Summons Mortgage Enforcement and Counterclaim / Trial Judgment

Legal Issues

  1. 1 Whether the 1st Defendant is liable under the all‑monies mortgage for borrowings of the 3rd Defendant
  2. 2 Whether the mortgage is void or unenforceable by reason of fraudulent misrepresentation, undue influence or non est factum
  3. 3 Quantum of the indebtedness and entitlement to possession

Ratio Decidendi

Because the 1st Defendant declined to give evidence and there was no admissible evidence supporting fraud, undue influence or non est factum, and because documentary evidence and witness testimony established that the 1st Defendant understood and executed an all‑monies mortgage without the Bank having notice of any fraud, the defences fail; the Bank proved liability and quantum (HKD 55,806,460.44) and is entitled to judgement, possession and indemnity costs; the counterclaim is dismissed and no certificate for two counsel is granted.

Court Disposition

Judgment for Plaintiff against 1st Defendant for HKD 55,806,460.44; possession of the mortgaged property; counterclaim dismissed; costs on indemnity basis awarded to Plaintiff; no certificate for two counsel granted.

Orders

  • Judgment entered for Plaintiff against 1st Defendant in sum HK$55,806,460.44
  • Possession of Flat 71A, Tower 3, Sorrento, No.1 Austin Road West, Kowloon awarded to Plaintiff