BANK OF CHINA (HONG KONG) LTD v. LIU SIK WING AND OTHERS

BANK OF CHINA (HONG KONG) LTD v. LIU SIK WING AND OTHERS

The Court rejected the belated oral agreement defences as unbelievable and inadmissible on the summary procedure; held that the 3rd Defendant has arguable defences based on mental incapacity and undue influence so summary judgment cannot be entered against her; found there is a substantial principal debt owing by the 1st and 2nd Defendants and granted partial judgment against them while giving them unconditional leave to defend the remainder; pre‑August 2001 interest must be included in the partial judgment calculation.

Citation
BANK OF CHINA (HONG KONG) LTD v. LIU SIK WING AND OTHERS
Parties
Plaintiff: Plaintiff (the bank); 1st Defendant: 1st Defendant; 2nd Defendant: 2nd Defendant; 3rd Defendant: 3rd Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 May 2004
Case Number
HCA2052/2003
Procedural Posture
Summary Judgment Appeal / Appeal Hearing on Order 14 (summary Judgment)
Outcome
Appeal allowed in part. Master’s refusal of summary judgment overturned in part. Partial judgment granted against the 1st and 2nd Defendants; summary judgment refused against the 3rd Defendant and she may defend; parties to calculate and submit draft partial judgment; costs allocated as set out.
Legal Topics
Summary Judgment, Oral Agreement Defence, Appropriation of Payments, Waiver of Interest, Quantum of Debt, Costs
Source Language
EN
Civil Procedure Contract Guarantee Banking Law Capacity/mental Incapacity Undue Influence Summary Judgment Oral Agreement Defence +4 more

Case Brief

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Parties

Plaintiff (the bank)

Plaintiff

1st Defendant

1st Defendant

2nd Defendant

2nd Defendant

3rd Defendant

3rd Defendant

Procedural Posture

Summary Judgment Appeal / Appeal Hearing on Order 14 (summary Judgment)

Legal Issues

  1. 1 whether belated oral agreements render guarantees unenforceable
  2. 2 whether guarantees are displaced by a government guarantee
  3. 3 whether the 3rd Defendant had capacity to be bound by guarantees

Ratio Decidendi

The Court rejected the belated oral agreement defences as unbelievable and inadmissible on the summary procedure; held that the 3rd Defendant has arguable defences based on mental incapacity and undue influence so summary judgment cannot be entered against her; found there is a substantial principal debt owing by the 1st and 2nd Defendants and granted partial judgment against them while giving them unconditional leave to defend the remainder; pre‑August 2001 interest must be included in the partial judgment calculation.

Court Disposition

Appeal allowed in part. Master’s refusal of summary judgment overturned in part. Partial judgment granted against the 1st and 2nd Defendants; summary judgment refused against the 3rd Defendant and she may defend; parties to calculate and submit draft partial judgment; costs allocated as set out.

Orders

  • Partial judgment to be entered against the 1st and 2nd Defendants for the outstanding principal and interest to be worked out by the parties and submitted as a draft for the Court’s approval; if no agreement the matter to be restored for hearing
  • Unconditional leave granted to the 1st and 2nd Defendants to defend the remainder of the Plaintiff’s claim