BOLD SHINE INVESTMENT LTD v. TSUI YEE KWAN

BOLD SHINE INVESTMENT LTD v. TSUI YEE KWAN

The summons for summary judgment was dismissed because the plaintiff demonstrated gross and unexplained delay in issuing the summons, the supporting affidavits did not comply with O.14 r.2 and O.41 r.5 and contained inadmissible material, and there were genuine triable issues of fact (notably denial of common intention and the defendant's pleaded loan and security) which made summary disposal inappropriate; a full trial was required.

Citation
BOLD SHINE INVESTMENT LTD v. TSUI YEE KWAN
Parties
Plaintiff: Plaintiff; Defendant: Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 April 2013
Case Number
HCA1867/1999
Procedural Posture
Application for Summary Judgment (o.14 Rhc) / Hearings on Summons for Summary Judgment
Outcome
Summons for summary judgment dismissed
Legal Topics
Common Intention Constructive Trust, Summary Judgment, Statute of Frauds (writing Requirements), Delay and Abuse of Process, Admissibility of Affidavit Evidence, Equitable Set Off, Security for Loan
Source Language
EN
Trusts and Equitable Interests Property Law Civil Procedure Conveyancing and Property Ordinance Evidence (affidavits) Common Intention Constructive Trust Summary Judgment Statute of Frauds (writing Requirements) +4 more

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Parties

Plaintiff

Plaintiff

Defendant

Defendant

Procedural Posture

Application for Summary Judgment (o.14 Rhc) / Hearings on Summons for Summary Judgment

Legal Issues

  1. 1 Whether summary judgment under O.14 was appropriate given gross delay by the plaintiff in issuing the summons
  2. 2 Whether the plaintiff established there was no bona fide or fairly arguable defence (i.e. whether the pleadings and admissible evidence disclose no triable issue)
  3. 3 Whether the supporting affidavits complied with O.14 r.2 and O.41 r.5 and were admissible

Ratio Decidendi

The summons for summary judgment was dismissed because the plaintiff demonstrated gross and unexplained delay in issuing the summons, the supporting affidavits did not comply with O.14 r.2 and O.41 r.5 and contained inadmissible material, and there were genuine triable issues of fact (notably denial of common intention and the defendant's pleaded loan and security) which made summary disposal inappropriate; a full trial was required.

Court Disposition

Summons for summary judgment dismissed

Orders

  • Summons for summary judgment dismissed
  • Order nisi that the costs of the summons be costs to the defendant to be taxed if not agreed and to be paid forthwith