PACIFIC HARBOR ADVISORS PTE LTD AND ANOTHER v. WINSON FEDERAL LTD AND OTHERS

PACIFIC HARBOR ADVISORS PTE LTD AND ANOTHER v. WINSON FEDERAL LTD AND OTHERS

Court held plaintiffs established prima facie entitlement to specific performance of the FSCL and Shanghai Bund share pledge agreements (D4 and D6 consented) and to specific performance of the IHAL share pledge agreements against Vincent; but Vincent has an arguable defence that the LOUs may have been discharged by the amendment agreements (because Carlos could have been discharged and effect on co-surety depends on whether liability was joint or joint and several), so leave to defend the LOUs was granted; plaintiffs allowed to amend prayer; costs nisi and further directions permitted.

Citation
PACIFIC HARBOR ADVISORS PTE LTD AND ANOTHER v. WINSON FEDERAL LTD AND OTHERS
Parties
1st Plaintiff: PACIFIC HARBOR ADVISORS PTE LTD; 2nd Plaintiff: PACIFIC HARBOUR SPECIAL HOLDINGS LIMITED; 1st Defendant: WINSON FEDERAL LIMITED; 2nd Defendant: FREDERICK, KAN KA CHONG (executor of the Estate of Cho Yuk Kei Carlos); 3rd Defendant: CHO WOON MING VINCENT; 4th Defendant: INTERNATIONAL HOTELIERS & ASSOCIATES LIMITED; 5th Defendant: UP SPEED INVESTMENTS LIMITED; 6th Defendant: RANMARK INVESTMENTS LIMITED; 7th Defendant: FURAMA (SHENYANG) COMPANY LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 November 2015
Case Number
HCA1257/2013
Procedural Posture
Second Summary Judgment Application (chambers Decision) / Decision on 2nd Summary Judgment Summons (orders and Leave)
Outcome
Partial summary judgment: specific performance granted against D4 and D6 and against Vincent in respect of IHAL share pledges; amendment of claim allowed; leave to Vincent to defend LOUs; costs reserved (nisi) and further directions permitted.
Legal Topics
Specific Performance, Summary Judgment, Discharge of Guarantor by Variation, Share Pledge, Letters of Undertaking, Leave to Defend, Construction/rectification
Source Language
EN
Contract Equity Civil Procedure Company Law Guarantee Law Property Law Specific Performance Summary Judgment +5 more

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Parties

PACIFIC HARBOR ADVISORS PTE LTD

1st Plaintiff

PACIFIC HARBOUR SPECIAL HOLDINGS LIMITED

2nd Plaintiff

WINSON FEDERAL LIMITED

1st Defendant

FREDERICK, KAN KA CHONG (executor of the Estate of Cho Yuk Kei Carlos)

2nd Defendant

CHO WOON MING VINCENT

3rd Defendant

INTERNATIONAL HOTELIERS & ASSOCIATES LIMITED

4th Defendant

UP SPEED INVESTMENTS LIMITED

5th Defendant

RANMARK INVESTMENTS LIMITED

6th Defendant

FURAMA (SHENYANG) COMPANY LIMITED

7th Defendant

Procedural Posture

Second Summary Judgment Application (chambers Decision) / Decision on 2nd Summary Judgment Summons (orders and Leave)

Legal Issues

  1. 1 Whether LOUs were discharged by the amendment agreements to the loan agreements
  2. 2 Whether creditor reserved rights or guarantors consented so as to prevent discharge
  3. 3 Whether specific performance is an appropriate remedy for LOUs and share pledge agreements

Ratio Decidendi

Court held plaintiffs established prima facie entitlement to specific performance of the FSCL and Shanghai Bund share pledge agreements (D4 and D6 consented) and to specific performance of the IHAL share pledge agreements against Vincent; but Vincent has an arguable defence that the LOUs may have been discharged by the amendment agreements (because Carlos could have been discharged and effect on co-surety depends on whether liability was joint or joint and several), so leave to defend the LOUs was granted; plaintiffs allowed to amend prayer; costs nisi and further directions permitted.

Court Disposition

Partial summary judgment: specific performance granted against D4 and D6 and against Vincent in respect of IHAL share pledges; amendment of claim allowed; leave to Vincent to defend LOUs; costs reserved (nisi) and further directions permitted.

Orders

  • Leave to plaintiffs to amend the prayer of the Amended Statement of Claim to claim specific performance of the IHAL Share Pledge Agreements against Vincent, costs of and incidental to the amendment to Vincent
  • Specific performance against 4th defendant of the FSCL Share Pledge Agreements with costs to plaintiffs