JARDINE ONESOLUTION (HK) LTD. v. AVANTI NETWORK CONSULTANCY LTD. AND ANOTHER

JARDINE ONESOLUTION (HK) LTD. v. AVANTI NETWORK CONSULTANCY LTD. AND ANOTHER

The summons to strike out the 2nd Defendant's counterclaim was dismissed because the counterclaim raised at least one new triable issue (ambiguity as to the identity of the 'Principal' and beneficiary/assignment issues) and was not a plain and obvious case warranting striking out under Order 18 Rule 19; the 2nd Defendant therefore has a prima facie case requiring trial and may pursue setting aside the judgment by appropriate application.

Citation
JARDINE ONESOLUTION (HK) LTD. v. AVANTI NETWORK CONSULTANCY LTD. AND ANOTHER
Parties
Plaintiff: Jardine OneSolution (HK) Limited; 1st Defendant (in Liquidation): Avanti Network Consultancy Limited; 2nd Defendant (guarantor): Lee Shung Chi
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
3 December 2002
Case Number
DCCJ9014/2001
Procedural Posture
Civil Debt Action Concerning Guarantee and Summary Judgment/striking Out Applications / Post Judgment Striking Out Application Under Order 18 Rule 19 (application to Strike Out Counterclaim and Ancillary Application to Uplift Stay)
Outcome
Summonses filed by the Plaintiff to strike out the 2nd Defendant's counterclaim and related application dismissed
Legal Topics
Enforceability of Guarantee, Guarantor Counterclaim/set Off, Summary Judgment, Striking Out (order 18 Rule 19), Service and Judgment in Absence, Assignment of Benefit Under Guarantee
Source Language
ET
Contract Guarantee Civil Procedure Debt Recovery Insolvency Enforceability of Guarantee Guarantor Counterclaim/set Off Summary Judgment +3 more

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Parties

Jardine OneSolution (HK) Limited

Plaintiff

Avanti Network Consultancy Limited

1st Defendant (in Liquidation)

Lee Shung Chi

2nd Defendant (guarantor)

Procedural Posture

Civil Debt Action Concerning Guarantee and Summary Judgment/striking Out Applications / Post Judgment Striking Out Application Under Order 18 Rule 19 (application to Strike Out Counterclaim and Ancillary Application to Uplift Stay)

Legal Issues

  1. 1 Whether the 2nd Defendant as guarantor may bring a counterclaim or set-off against the Plaintiff
  2. 2 Whether the Guarantee is enforceable against the 2nd Defendant given discrepancies in named parties (beneficiary and principal)
  3. 3 Whether the 2nd Defendant's counterclaim is plain and obvious such that it should be struck out under Order 18 Rule 19

Ratio Decidendi

The summons to strike out the 2nd Defendant's counterclaim was dismissed because the counterclaim raised at least one new triable issue (ambiguity as to the identity of the 'Principal' and beneficiary/assignment issues) and was not a plain and obvious case warranting striking out under Order 18 Rule 19; the 2nd Defendant therefore has a prima facie case requiring trial and may pursue setting aside the judgment by appropriate application.

Court Disposition

Summonses filed by the Plaintiff to strike out the 2nd Defendant's counterclaim and related application dismissed

Orders

  • Summons dated 22 June 2002 (strike out counterclaim under Order 18 Rule 19) dismissed
  • Summons dated 20 November 2002 (leave to amend/uplift stay of execution) dismissed