KWOK WAI PAN v. CHAN TUNG YEUNG ANDREW AND OTHERS

KWOK WAI PAN v. CHAN TUNG YEUNG ANDREW AND OTHERS

Summary judgment in both actions was dismissed because the plaintiffs failed to present a sufficiently clear and supported pleaded case: the pleaded causes of action were ambiguous or inconsistent with the executed documents (notably the Supplemental Deed which appears to novate debt away from the individual), significant contemporaneous evidence was absent or unexplained (notably allocation of large cheques drawn on a solicitor's client account), and genuine triable issues existed requiring a trial; accordingly summary procedure was inappropriate and costs were awarded to the defendants.

Citation
[2020] HKCFI 2432
Parties
Plaintiff (hca 1789/2018): Treasure Chain (HK) Holdings Limited; Plaintiff (hca 1790/2018): Kwok Wai Pan; 1st Defendant: Treasure House Ventures Limited; Defendant / 1st Defendant (hca 1790/2018) and 2nd Defendant (hca 1789/2018): Chan Tung Yeung Andrew; 3rd Defendant (hca 1790/2018): 3rd Defendant (unnamed in reasons); 4th Defendant (hca 1790/2018): Tsoi Yu Yu
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 September 2020
Case Number
HCA1790/2018
Procedural Posture
Civil Action Summary Judgment Applications and Appeals From Master's Decision / Appeal From Master's Decision on Summary Judgment (fresh Hearing)
Outcome
Summary judgment applications in both actions dismissed; costs awarded to defendants; stay application rendered academic and no operative stay order made.
Legal Topics
Summary Judgment, Loan Agreements, Novation, Personal Guarantee, Legal Charges, Pleading Sufficiency, Triable Issues, Monies Had and Received
Source Language
EN
Civil Procedure Contract Law Security and Guarantees Equity and Trusts Summary Judgment Loan Agreements Novation Personal Guarantee +4 more

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Parties

Treasure Chain (HK) Holdings Limited

Plaintiff (hca 1789/2018)

Kwok Wai Pan

Plaintiff (hca 1790/2018)

Treasure House Ventures Limited

1st Defendant

Chan Tung Yeung Andrew

Defendant / 1st Defendant (hca 1790/2018) and 2nd Defendant (hca 1789/2018)

3rd Defendant (unnamed in reasons)

3rd Defendant (hca 1790/2018)

Tsoi Yu Yu

4th Defendant (hca 1790/2018)

Procedural Posture

Civil Action Summary Judgment Applications and Appeals From Master's Decision / Appeal From Master's Decision on Summary Judgment (fresh Hearing)

Legal Issues

  1. 1 Whether plaintiff pleaded and established a clear cause of action to justify summary judgment
  2. 2 Whether the monies paid were advances under the pleaded loan agreements or for other purposes
  3. 3 Whether the Undated Loan Agreement and Supplemental Deed effected a novation relieving the individual of personal liability

Ratio Decidendi

Summary judgment in both actions was dismissed because the plaintiffs failed to present a sufficiently clear and supported pleaded case: the pleaded causes of action were ambiguous or inconsistent with the executed documents (notably the Supplemental Deed which appears to novate debt away from the individual), significant contemporaneous evidence was absent or unexplained (notably allocation of large cheques drawn on a solicitor's client account), and genuine triable issues existed requiring a trial; accordingly summary procedure was inappropriate and costs were awarded to the defendants.

Court Disposition

Summary judgment applications in both actions dismissed; costs awarded to defendants; stay application rendered academic and no operative stay order made.

Orders

  • Summary judgment applications in HCA 1789/2018 and HCA 1790/2018 dismissed
  • Costs here and below payable forthwith by the Plaintiff in each action to be taxed if not agreed