BANK OF CHINA (HONG KONG) LTD v. PERPETUAL WEALTH (HONG KONG) LTD AND OTHERS

BANK OF CHINA (HONG KONG) LTD v. PERPETUAL WEALTH (HONG KONG) LTD AND OTHERS

The court granted summary judgment for the plaintiff because the plaintiff complied with Order 88 rule 5(3) and proved the sums due; the defendants failed to establish misrepresentation (the alleged representation was accurate in substance) and non est factum (no disability, and carelessness in signing without independent advice), so there is no real defence requiring a trial.

Citation
[2025] HKCFI 2300
Parties
Plaintiff: Plaintiff; 1st Defendant (mortgagor): 1st Defendant; 2nd Defendant (guarantor): 2nd Defendant; 3rd Defendant (borrower): 3rd Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 May 2025
Case Number
HCMP680/2024
Procedural Posture
Order 88 Originating Summons for Mortgage Possession and Payment / Summary Disposal on Originating Summons (summary Judgment / Order 88 Proceedings)
Outcome
Summary judgment for the plaintiff in terms of the Originating Summons; defendants' defences dismissed
Legal Topics
Misrepresentation, Non Est Factum, Summary Judgment, Possession, Guarantee, Loan Facility Charges
Source Language
EN
Mortgage Law Contract Law Equity Civil Procedure Misrepresentation Non Est Factum Summary Judgment Possession +2 more

Case Brief

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Parties

Plaintiff

Plaintiff

1st Defendant

1st Defendant (mortgagor)

2nd Defendant

2nd Defendant (guarantor)

3rd Defendant

3rd Defendant (borrower)

Procedural Posture

Order 88 Originating Summons for Mortgage Possession and Payment / Summary Disposal on Originating Summons (summary Judgment / Order 88 Proceedings)

Legal Issues

  1. 1 Whether the plaintiff complied with Order 88 rule 5(3) of the Rules of the High Court (Cap.4A)
  2. 2 Whether alleged oral misrepresentations by plaintiff's officer negate the guarantees/charges
  3. 3 Whether the 2nd defendant can establish non est factum

Ratio Decidendi

The court granted summary judgment for the plaintiff because the plaintiff complied with Order 88 rule 5(3) and proved the sums due; the defendants failed to establish misrepresentation (the alleged representation was accurate in substance) and non est factum (no disability, and carelessness in signing without independent advice), so there is no real defence requiring a trial.

Court Disposition

Summary judgment for the plaintiff in terms of the Originating Summons; defendants' defences dismissed

Orders

  • Payment of all monies due under the mortgage dated 23 May 2017, the Second Legal Charge dated 18 September 2017 and the Deeds of Guarantee dated 11 May 2017 and 28 August 2017
  • Delivery of vacant possession of the mortgaged properties by the 1st defendant to the plaintiff