TADANO SOUTH CHINA CO LTD v. BRIGHTFORD LTD AND ANOTHER

TADANO SOUTH CHINA CO LTD v. BRIGHTFORD LTD AND ANOTHER

The appeal was dismissed because the appellant failed to satisfy the Ladd v Marshall criteria for admitting fresh evidence and had not made full and frank disclosure of his means or timely pleaded the no‑demand defence; the judge's order making leave to defend conditional on payment into court of the guaranteed amount was a proper exercise of judicial discretion and not vulnerable to appellate interference.

Citation
TADANO SOUTH CHINA CO LTD v. BRIGHTFORD LTD AND ANOTHER
Parties
Plaintiff (hca 9630/1999) / Respondent: Tadano South China Company Limited; 1st Defendant (hca 9630/1999) / Plaintiff (hca 16180/1998): Brightford Limited; 2nd Defendant (hca 9630/1999) / Appellant: Lam Chi Biu; 1st Defendant (hca 16180/1998): Mak Kee Limited; 2nd Defendant (hca 16180/1998): Shenzhen Mak Kee Machinery Company Limited
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
17 August 2006
Case Number
CACV152/2006
Procedural Posture
Civil Appeal (court of Appeal) Consolidated From HCA 9630/1999 and HCA 16180/1998 / Appeal Heard; Reasons for Judgment Delivered; Appeal Dismissed
Outcome
Appeal dismissed with costs; conditional leave to defend requiring payment into court upheld.
Legal Topics
Summary Judgment, Leave to Defend, Payment Into Court, Admission of Fresh Evidence on Appeal, Condition Precedent (demand), Ladd V Marshall Rule
Source Language
EN
Contract Civil Procedure Guarantee Appeal Summary Judgment Leave to Defend Payment Into Court Admission of Fresh Evidence on Appeal +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 1 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Tadano South China Company Limited

Plaintiff (hca 9630/1999) / Respondent

Brightford Limited

1st Defendant (hca 9630/1999) / Plaintiff (hca 16180/1998)

Lam Chi Biu

2nd Defendant (hca 9630/1999) / Appellant

Mak Kee Limited

1st Defendant (hca 16180/1998)

Shenzhen Mak Kee Machinery Company Limited

2nd Defendant (hca 16180/1998)

Procedural Posture

Civil Appeal (court of Appeal) Consolidated From HCA 9630/1999 and HCA 16180/1998 / Appeal Heard; Reasons for Judgment Delivered; Appeal Dismissed

Legal Issues

  1. 1 Whether conditional leave to defend subject to payment into court was an appropriate exercise of discretion
  2. 2 Whether fresh evidence (fourth affidavit) should be admitted on appeal under Ladd v Marshall
  3. 3 Whether a demand was a condition precedent to liability under the guarantee and whether absence of demand defeated the claim

Ratio Decidendi

The appeal was dismissed because the appellant failed to satisfy the Ladd v Marshall criteria for admitting fresh evidence and had not made full and frank disclosure of his means or timely pleaded the no‑demand defence; the judge's order making leave to defend conditional on payment into court of the guaranteed amount was a proper exercise of judicial discretion and not vulnerable to appellate interference.

Court Disposition

Appeal dismissed with costs; conditional leave to defend requiring payment into court upheld.

Orders

  • Appeal dismissed with costs to the respondent.
  • Conditional leave to defend in HCA 9630/1999 upheld on condition that the appellant pay into court the full amount of the guarantee (42,560,000).