FREEWAY FINANCE CO LTD v. TAM CHUEN ON RAYMOND

FREEWAY FINANCE CO LTD v. TAM CHUEN ON RAYMOND

Clause 2 is an independent covenant that did not merge into the judgment; therefore the contractual rate of 48% p.a. applies to post-judgment interest. Section 49 of the High Court Ordinance does not displace such an independent covenant and there was no evidence to render the clause unconscionable under the Unconscionable Contracts Ordinance.

Citation
FREEWAY FINANCE CO LTD v. TAM CHUEN ON RAYMOND
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 July 2010
Case Number
HCA61/2010
Procedural Posture
Civil Appeal (loan Recovery/post Judgment Interest) / Appeal Decision
Outcome
Appeal allowed.
Legal Topics
Post Judgment Interest, Merger Doctrine, Unconscionable Contracts, Contractual Interest Clause, Possession/charge Enforcement
Source Language
EN
Contract Civil Procedure Consumer Protection Money Lenders Regulation Property (security/charge) Post Judgment Interest Merger Doctrine Unconscionable Contracts +2 more

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Procedural Posture

Civil Appeal (loan Recovery/post Judgment Interest) / Appeal Decision

Legal Issues

  1. 1 Whether a contractual interest clause can continue to apply after judgment or is merged into the judgment
  2. 2 Whether clause 2 of the loan agreement merged into the judgment
  3. 3 Whether section 49 High Court Ordinance displaces an independent contractual post-judgment interest covenant

Ratio Decidendi

Clause 2 is an independent covenant that did not merge into the judgment; therefore the contractual rate of 48% p.a. applies to post-judgment interest. Section 49 of the High Court Ordinance does not displace such an independent covenant and there was no evidence to render the clause unconscionable under the Unconscionable Contracts Ordinance.

Court Disposition

Appeal allowed.

Orders

  • Post-judgment interest ordered at the contractual rate of 48% per annum
  • Order nisi that costs of the appeal be to the plaintiff