LET-WIN PLASTIC PRODUCTS FACTORY LTD v. LAM KEI KIT

LET-WIN PLASTIC PRODUCTS FACTORY LTD v. LAM KEI KIT

The appeal is allowed and the summary judgment set aside because the defendant demonstrated a triable defence of equitable set-off/indemnity by evidencing forthcoming enforcement of the 2nd Mortgage and surrender of the Shatin Property which would result in the Bank recovering proceeds sufficient to discharge the plaintiff's indebtedness to the Bank equal to or exceeding the claimed Debt; the implied trust defence was not triable and was rejected as unsupported and inconsistent with earlier statements.

Citation
LET-WIN PLASTIC PRODUCTS FACTORY LTD v. LAM KEI KIT
Parties
Plaintiff: Plaintiff; Defendant: Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
25 June 2009
Case Number
HCA1769/2008
Procedural Posture
Summary Judgment Appeal / Appeal From Master Yu's O.14 Summary Judgment Order
Outcome
Appeal allowed; summary judgment set aside; defendant given unconditional leave to defend
Legal Topics
Summary Judgment, Equitable Set Off, Implied Trust (resulting/constructive), Second Mortgage Enforcement, Indemnity, Costs
Source Language
EN
Civil Procedure Equity Mortgage Guarantee Contract Summary Judgment Equitable Set Off Implied Trust (resulting/constructive) +3 more

Case Brief

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Parties

Plaintiff

Plaintiff

Defendant

Defendant

Procedural Posture

Summary Judgment Appeal / Appeal From Master Yu's O.14 Summary Judgment Order

Legal Issues

  1. 1 Whether the defendant has a triable defence to the plaintiff's claim for the outstanding debt
  2. 2 Whether the defendant's implied trust (joint-venture) defence is triable
  3. 3 Whether equitable set-off/indemnity arises for a surety where the security is being enforced and will discharge the creditor's indebtedness

Ratio Decidendi

The appeal is allowed and the summary judgment set aside because the defendant demonstrated a triable defence of equitable set-off/indemnity by evidencing forthcoming enforcement of the 2nd Mortgage and surrender of the Shatin Property which would result in the Bank recovering proceeds sufficient to discharge the plaintiff's indebtedness to the Bank equal to or exceeding the claimed Debt; the implied trust defence was not triable and was rejected as unsupported and inconsistent with earlier statements.

Court Disposition

Appeal allowed; summary judgment set aside; defendant given unconditional leave to defend

Orders

  • Order dated 31 December 2008 granted by Master Yu set aside
  • Unconditional leave granted to the Defendant to defend