EVER CHANCE DEVELOPMENT LTD v. CHING KAI CHIU t/a WING HUNG HARDWARE & MACHINERY CO AND OTHERS

EVER CHANCE DEVELOPMENT LTD v. CHING KAI CHIU t/a WING HUNG HARDWARE & MACHINERY CO AND OTHERS

Defendants raised a bona fide and substantial defence that their obligations under the July memorandum are contingent on the first defendant's liability under a loan agreement that foreign courts declared invalid and treated by way of restitution; because the issues are materially different from matters previously decided, res judicata does not preclude the defence and unconditional leave to defend must be granted.

Citation
EVER CHANCE DEVELOPMENT LTD v. CHING KAI CHIU t/a WING HUNG HARDWARE & MACHINERY CO AND OTHERS
Parties
Plaintiff: Ever Chance Development Limited; First Defendant: Ching Kai Chiu trading as Wing Hung Hardware & Machinery Company; Second Defendant: Lee Yuk Ying; Third Defendant: Many Fund Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 December 1997
Case Number
HCA12909/1994
Procedural Posture
Civil Contract (specific Performance) / Application for Final Judgment on July Memorandum; Court Granted Unconditional Leave to Defend to Second and Third Defendants
Outcome
Application for final judgment dismissed as against second and third defendants; unconditional leave to defend granted to Lee Yuk Ying and Many Fund Limited.
Legal Topics
Specific Performance, Enforceability of Foreign Judgments, Res Judicata, Restitution (restitutio in Integrum), Loan Agreement Enforceability, Leave to Defend
Source Language
EN
Contract Equity Civil Procedure Conflict of Laws Specific Performance Enforceability of Foreign Judgments Res Judicata Restitution (restitutio in Integrum) +2 more

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Parties

Ever Chance Development Limited

Plaintiff

Ching Kai Chiu trading as Wing Hung Hardware & Machinery Company

First Defendant

Lee Yuk Ying

Second Defendant

Many Fund Limited

Third Defendant

Procedural Posture

Civil Contract (specific Performance) / Application for Final Judgment on July Memorandum; Court Granted Unconditional Leave to Defend to Second and Third Defendants

Legal Issues

  1. 1 Whether second and third defendants are liable under the July memorandum
  2. 2 Whether liability under the July memorandum depends on liability of the first defendant under the underlying loan agreement
  3. 3 Whether the underlying loan agreement is enforceable given foreign court findings of invalidity

Ratio Decidendi

Defendants raised a bona fide and substantial defence that their obligations under the July memorandum are contingent on the first defendant's liability under a loan agreement that foreign courts declared invalid and treated by way of restitution; because the issues are materially different from matters previously decided, res judicata does not preclude the defence and unconditional leave to defend must be granted.

Court Disposition

Application for final judgment dismissed as against second and third defendants; unconditional leave to defend granted to Lee Yuk Ying and Many Fund Limited.

Orders

  • Second and third defendants granted unconditional leave to defend.
  • Order nisi that Madam Lee (Lee Yuk Ying) and Many Fund Limited have their costs of the application; costs to follow the event.