HUNTER SOCKS & APPAREL INTERNATIONAL LTD AND OTHERS v. DBS BANK (HONG KONG) LTD

HUNTER SOCKS & APPAREL INTERNATIONAL LTD AND OTHERS v. DBS BANK (HONG KONG) LTD

The court found triable issues of fact and law (misrepresentation, negligence, contractual estoppel, applicability of UCO, discharge of guarantees by variation/conduct, prevention principle) that could not be resolved on affidavit evidence and refused summary determination; instead the court ordered HCMP 2241 to continue as if begun by writ, consolidated it with HCA 1447, and gave directions for pleadings; costs of interlocutory applications ordered nisi to be costs in the cause.

Citation
HUNTER SOCKS & APPAREL INTERNATIONAL LTD AND OTHERS v. DBS BANK (HONG KONG) LTD
Parties
Plaintiff (hcmp 2241); Defendant (hca 1447): DBS BANK (HONG KONG) LIMITED; 1st Defendant (hcmp 2241); 1st Plaintiff (hca 1447): HUNTER SOCKS & APPAREL INTERNATIONAL LIMITED; 2nd Defendant (hcmp 2241); 6th Plaintiff (hca 1447): EASE KEEN INTERNATIONAL LIMITED; 3rd Defendant (hcmp 2241) (discontinued): HUNTER SOCKS KNITTING FACTORY (H.K.) LIMITED; 4th Defendant (hcmp 2241); 5th Plaintiff (hca 1447): LO LAI WAH; 5th Defendant (hcmp 2241); 3rd Plaintiff (hca 1447): WU TIK YAN TERENCE; 6th Defendant (hcmp 2241); 4th Plaintiff (hca 1447): WU TICK FAI GERALD; 7th Defendant (hcmp 2241); 2nd Plaintiff (hca 1447): WU WING CHE DEVEN
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 September 2017
Case Number
HCA1447/2016
Procedural Posture
Mortgage Enforcement Proceedings Joined With Declaratory and Contractual Claims Arising From Isda/fx Derivative Agreements / Interlocutory — Application for Summary Determination Refused; Consolidation and Directions Ordered
Outcome
Summary determination refused; triable issues identified; HCMP 2241 continued as writ; HCMP 2241 consolidated with HCA 1447; directions for pleadings ordered; costs of interlocutory proceedings ordered nisi to be costs in the cause.
Legal Topics
Summary Judgment, Contractual Estoppel, Misrepresentation, Negligence in Sales of Financial Products, Unconscionable Contracts (uco), Discharge/variation of Guarantee, No Set Off Clauses, Prevention Principle, Consolidation of Proceedings
Source Language
EN
Mortgage Law Contract Law Banking Law Financial Derivatives/isda Tort (negligence) Equity (guarantee) Civil Procedure Summary Judgment +8 more

Case Brief

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Parties

DBS BANK (HONG KONG) LIMITED

Plaintiff (hcmp 2241); Defendant (hca 1447)

HUNTER SOCKS & APPAREL INTERNATIONAL LIMITED

1st Defendant (hcmp 2241); 1st Plaintiff (hca 1447)

EASE KEEN INTERNATIONAL LIMITED

2nd Defendant (hcmp 2241); 6th Plaintiff (hca 1447)

HUNTER SOCKS KNITTING FACTORY (H.K.) LIMITED

3rd Defendant (hcmp 2241) (discontinued)

LO LAI WAH

4th Defendant (hcmp 2241); 5th Plaintiff (hca 1447)

WU TIK YAN TERENCE

5th Defendant (hcmp 2241); 3rd Plaintiff (hca 1447)

WU TICK FAI GERALD

6th Defendant (hcmp 2241); 4th Plaintiff (hca 1447)

WU WING CHE DEVEN

7th Defendant (hcmp 2241); 2nd Plaintiff (hca 1447)

Procedural Posture

Mortgage Enforcement Proceedings Joined With Declaratory and Contractual Claims Arising From Isda/fx Derivative Agreements / Interlocutory — Application for Summary Determination Refused; Consolidation and Directions Ordered

Legal Issues

  1. 1 Whether court may grant summary judgment on part of a mortgage claim under Order 88
  2. 2 Whether there are triable issues of misrepresentation and negligent advice in sale of FX derivative products
  3. 3 Whether contractual clauses (entire agreement, risk disclosure, no duty to advise) give rise to contractual estoppel defeating misrepresentation/negligence claims

Ratio Decidendi

The court found triable issues of fact and law (misrepresentation, negligence, contractual estoppel, applicability of UCO, discharge of guarantees by variation/conduct, prevention principle) that could not be resolved on affidavit evidence and refused summary determination; instead the court ordered HCMP 2241 to continue as if begun by writ, consolidated it with HCA 1447, and gave directions for pleadings; costs of interlocutory applications ordered nisi to be costs in the cause.

Court Disposition

Summary determination refused; triable issues identified; HCMP 2241 continued as writ; HCMP 2241 consolidated with HCA 1447; directions for pleadings ordered; costs of interlocutory proceedings ordered nisi to be costs in the cause.

Orders

  • HCMP 2241 to continue as if the proceedings had been begun by writ
  • HCMP 2241 consolidated with HCA 1447; DBS Bank to be plaintiff; Hunter, Ease Keen, Lo, Terence, Gerald and Deven to be defendants in consolidated proceedings