MENGIWA PROPERTY INVESTMENT LTD v. LIFESTYLE RESTAURANT LTD

MENGIWA PROPERTY INVESTMENT LTD v. LIFESTYLE RESTAURANT LTD

The court exercised its discretion under Order 29 r.11(1)(b) to grant an interim payment of HK$3,622,764.93 because (1) there is a judgment on liability with damages to be assessed, (2) the assessment is unlikely to be concluded soon and delay prejudices the plaintiff, (3) there is no admissible evidence that the defendant is insolvent or that payment would unfairly prejudice other creditors, and (4) the defendant cannot rely on insolvency arguments inconsistently while contesting the winding-up petition; s.182 CWUMPO does not automatically bar interim payment and validation can be sought if required.

Citation
[2022] HKCFI 3640
Parties
Landlord: Plaintiff (P); Tenant: Defendant (D)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 December 2022
Case Number
HCA1864/2021
Procedural Posture
Landlord and Tenant — Claim for Rent and Charges / Appeal (de Novo) From Master's Decision on Summary Judgment and Interim Payment
Outcome
Appeal allowed in part: Master's order dismissing interim payment set aside and interim payment ordered
Legal Topics
Interim Payment, Summary Judgment, Statutory Demand, Winding Up Petition, Abatement of Rent, Validation Order (s.182 Cwumpo), Abuse of Process, Costs
Source Language
EN
Landlord and Tenant Contract Civil Procedure Insolvency Law Interim Payment Summary Judgment Statutory Demand Winding Up Petition +4 more

Case Brief

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Parties

Plaintiff (P)

Landlord

Defendant (D)

Tenant

Procedural Posture

Landlord and Tenant — Claim for Rent and Charges / Appeal (de Novo) From Master's Decision on Summary Judgment and Interim Payment

Legal Issues

  1. 1 Whether an interim payment should be ordered under Order 29 rule 11(1) given a final judgment on liability and damages to be assessed
  2. 2 Whether the pendency of winding-up proceedings or alleged insolvency of the defendant bars or justifies refusal of interim payment
  3. 3 Whether prejudice or need must be shown to obtain an interim payment

Ratio Decidendi

The court exercised its discretion under Order 29 r.11(1)(b) to grant an interim payment of HK$3,622,764.93 because (1) there is a judgment on liability with damages to be assessed, (2) the assessment is unlikely to be concluded soon and delay prejudices the plaintiff, (3) there is no admissible evidence that the defendant is insolvent or that payment would unfairly prejudice other creditors, and (4) the defendant cannot rely on insolvency arguments inconsistently while contesting the winding-up petition; s.182 CWUMPO does not automatically bar interim payment and validation can be sought if required.

Court Disposition

Appeal allowed in part: Master's order dismissing interim payment set aside and interim payment ordered

Orders

  • Defendant to pay HK$3,622,764.93 to Plaintiff as interim payment
  • Costs of the appeal to follow the event and be paid by Defendant to Plaintiff, summarily assessed at HK$181,500 on solicitor and own client basis