FOREVER PROPERTY FINANCE CO LTD v. CHAN HEI KWAN HELENA AND ANOTHER

FOREVER PROPERTY FINANCE CO LTD v. CHAN HEI KWAN HELENA AND ANOTHER

The court refused to strike out because the alleged repayment raised a bona fide factual dispute not manifestly unbelievable on the evidence before the court and therefore ought to be tried; consequently leave to enter final judgment against the 1st defendant was refused as the plaintiff accepted it could not be granted while the 2nd defendant's defence stands.

Citation
FOREVER PROPERTY FINANCE CO LTD v. CHAN HEI KWAN HELENA AND ANOTHER
Parties
Plaintiff: Plaintiff; 1st Defendant: 1st Defendant; 2nd Defendant: 2nd Defendant
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
10 June 2016
Case Number
DCCJ4339/2015
Procedural Posture
Money Lender and Mortgage Action (district Court) / Appeal From Master Refusing Strike Out and Refusing Leave to Enter Final Judgment; Interlocutory
Outcome
Appeal dismissed; refusal to strike out upheld; leave to enter final judgment refused; plaintiff ordered to pay 2nd defendant's costs of appeal.
Legal Topics
Striking Out Under Order 18 R19(1), Leave to Enter Final Judgment (order 83 a R4; Order 88 R6), Extortionate Interest, Credibility of Repayment Allegations, Particulars of Payment
Source Language
EN
Contract Mortgage Moneylenders Civil Procedure Evidence Striking Out Under Order 18 R19(1) Leave to Enter Final Judgment (order 83 a R4; Order 88 R6) Extortionate Interest +2 more

Case Brief

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Parties

Plaintiff

Plaintiff

1st Defendant

1st Defendant

2nd Defendant

2nd Defendant

Procedural Posture

Money Lender and Mortgage Action (district Court) / Appeal From Master Refusing Strike Out and Refusing Leave to Enter Final Judgment; Interlocutory

Legal Issues

  1. 1 Whether the 2nd defendant's defence should be struck out as devoid of merit under Order 18 r19(1)
  2. 2 Whether leave to enter final judgment should be granted against the 1st defendant under Order 83A r4 and Order 88 r6
  3. 3 Whether the 2nd defendant in fact repaid the loans and interest as alleged

Ratio Decidendi

The court refused to strike out because the alleged repayment raised a bona fide factual dispute not manifestly unbelievable on the evidence before the court and therefore ought to be tried; consequently leave to enter final judgment against the 1st defendant was refused as the plaintiff accepted it could not be granted while the 2nd defendant's defence stands.

Court Disposition

Appeal dismissed; refusal to strike out upheld; leave to enter final judgment refused; plaintiff ordered to pay 2nd defendant's costs of appeal.

Orders

  • Refused to strike out 2nd defendant's defence under Order 18 r19(1)
  • Dismissed plaintiff's appeal against Master Rita So's refusal to grant leave to enter final judgment against the 1st defendant