WU WAI LEUNG DANNY v. CHOW TAI FOOK NOMINEE LTD AND OTHERS

WU WAI LEUNG DANNY v. CHOW TAI FOOK NOMINEE LTD AND OTHERS

The court held DW’s alleged oral agreements and variations were contradicted by contemporaneous, professionally-drafted written loan and security documents, relevant communications and conduct; the pleaded defences were patently unbelievable and frivolous so summary judgment was appropriate and DW’s parallel declaration claims and counterclaims were an abuse of process and were struck out; indemnity costs were ordered in principle pursuant to contractual indemnity provisions.

Citation
[2021] HKCFI 3019
Parties
Plaintiff in HCA 85/2020 and HCA 86/2020; 1st Defendant in HCA 123/2020 and HCA 221/2020: Chow Tai Fook Nominee Limited; 1st Defendant in HCA 85/2020: Diamond City Limited; 1st Defendant in HCA 86/2020 and 1st Defendant in HCA 92/2020: Gateway Asia Resources Limited; 2nd Defendant in HCA 85/2020, HCA 86/2020 and HCA 92/2020; Plaintiff in HCA 123/2020 and HCA 221/2020: Wu Wai Leung, Danny; Plaintiff in HCA 92/2020; 2nd Defendant in HCA 123/2020: Idea Perfect Holdings Limited; Receiver; 3rd Defendant in HCA 123/2020; 2nd Defendant in HCA 221/2020: Koo Chi Sum; Receiver; 4th Defendant in HCA 123/2020; 3rd Defendant in HCA 221/2020: Simon Rhys Thomas
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 October 2021
Case Number
HCA123/2020
Procedural Posture
Civil Debt Recovery and Declaratory Proceedings Arising From Loan Agreements, Guarantees and Share Charges / Chamber Applications for Summary Judgment and Striking Out (order 14 and Striking Out Applications)
Outcome
Summary judgment entered for CTFN and Idea Perfect; DW’s counterclaims and separate declaration actions struck out as frivolous and an abuse of process; costs awarded to plaintiffs to be taxed on an indemnity basis if not agreed (certificate for two counsel).
Legal Topics
Summary Judgment, Striking Out, Abuse of Process, No Oral Modification Clause, Estoppel by Representation, Indemnity Costs
Source Language
EN
Contract Guarantee Debt Recovery Equity (receivership) Civil Procedure Estoppel Summary Judgment Striking Out +4 more

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Parties

Chow Tai Fook Nominee Limited

Plaintiff in HCA 85/2020 and HCA 86/2020; 1st Defendant in HCA 123/2020 and HCA 221/2020

Diamond City Limited

1st Defendant in HCA 85/2020

Gateway Asia Resources Limited

1st Defendant in HCA 86/2020 and 1st Defendant in HCA 92/2020

Wu Wai Leung, Danny

2nd Defendant in HCA 85/2020, HCA 86/2020 and HCA 92/2020; Plaintiff in HCA 123/2020 and HCA 221/2020

Idea Perfect Holdings Limited

Plaintiff in HCA 92/2020; 2nd Defendant in HCA 123/2020

Koo Chi Sum

Receiver; 3rd Defendant in HCA 123/2020; 2nd Defendant in HCA 221/2020

Simon Rhys Thomas

Receiver; 4th Defendant in HCA 123/2020; 3rd Defendant in HCA 221/2020

Procedural Posture

Civil Debt Recovery and Declaratory Proceedings Arising From Loan Agreements, Guarantees and Share Charges / Chamber Applications for Summary Judgment and Striking Out (order 14 and Striking Out Applications)

Legal Issues

  1. 1 Whether respondent DW has any triable issue or arguable defence to the loan and guarantee claims
  2. 2 Whether alleged oral variations/common understanding can lawfully postpone maturity dates
  3. 3 Whether DW’s counterclaims and separate declaration actions are frivolous or an abuse of process

Ratio Decidendi

The court held DW’s alleged oral agreements and variations were contradicted by contemporaneous, professionally-drafted written loan and security documents, relevant communications and conduct; the pleaded defences were patently unbelievable and frivolous so summary judgment was appropriate and DW’s parallel declaration claims and counterclaims were an abuse of process and were struck out; indemnity costs were ordered in principle pursuant to contractual indemnity provisions.

Court Disposition

Summary judgment entered for CTFN and Idea Perfect; DW’s counterclaims and separate declaration actions struck out as frivolous and an abuse of process; costs awarded to plaintiffs to be taxed on an indemnity basis if not agreed (certificate for two counsel).

Orders

  • Summary judgment entered against Diamond City, Gateway Asia and Wu Wai Leung Danny in HCA 85/2020 and HCA 86/2020 in terms of CTFN’s summonses.
  • Wu Wai Leung Danny’s counterclaim in HCA 85/2020 and HCA 86/2020 is struck out.