MA YUN KOO v. HO CHUN WING

MA YUN KOO v. HO CHUN WING

The court granted leave to appeal out of time and admitted the defendant's late affirmation because the delay was explainable, the new evidence could not with reasonable diligence have been filed earlier and would likely affect the outcome; because the defence raised triable issues (illegality and deferred repayment by joint development) summary judgment was set aside and the defendant given unconditional leave to defend; the charging order was vacated and costs awarded to the defendant.

Citation
MA YUN KOO v. HO CHUN WING
Parties
Plaintiff: MA YUN KOO; Defendant: HO CHUN WING
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 September 2012
Case Number
HCA408/2012
Procedural Posture
Civil Claim for Recovery of Loan / Summary Judgment and Appeal / Interlocutory Appeal Against Summary Judgment and Application to Admit New Evidence / Leave to Appeal Out of Time
Outcome
Summary judgment set aside; leave to appeal out of time granted; late evidence admitted; defendant granted unconditional leave to defend; plaintiff's charging order vacated; costs awarded to defendant.
Legal Topics
Summary Judgment, Leave to Appeal Out of Time, Admission of Fresh Evidence on Appeal, Charging Order, Illegality Defence, Oral Agreement/deferred Payment
Source Language
EN
Civil Procedure Contract Law Property Law Equity Summary Judgment Leave to Appeal Out of Time Admission of Fresh Evidence on Appeal Charging Order +2 more

Case Brief

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Parties

MA YUN KOO

Plaintiff

HO CHUN WING

Defendant

Procedural Posture

Civil Claim for Recovery of Loan / Summary Judgment and Appeal / Interlocutory Appeal Against Summary Judgment and Application to Admit New Evidence / Leave to Appeal Out of Time

Legal Issues

  1. 1 Whether to grant leave to appeal out of time
  2. 2 Whether to admit the defendant's new evidence (affirmation) on appeal
  3. 3 Whether the summary judgment should be set aside and the defendant given leave to defend

Ratio Decidendi

The court granted leave to appeal out of time and admitted the defendant's late affirmation because the delay was explainable, the new evidence could not with reasonable diligence have been filed earlier and would likely affect the outcome; because the defence raised triable issues (illegality and deferred repayment by joint development) summary judgment was set aside and the defendant given unconditional leave to defend; the charging order was vacated and costs awarded to the defendant.

Court Disposition

Summary judgment set aside; leave to appeal out of time granted; late evidence admitted; defendant granted unconditional leave to defend; plaintiff's charging order vacated; costs awarded to defendant.

Orders

  • Set aside the judgment entered on 25 June 2012
  • Grant defendant unconditional leave to defend