BANK OF CHINA (HONG KONG) LTD v. COSAN LTD AND OTHERS

BANK OF CHINA (HONG KONG) LTD v. COSAN LTD AND OTHERS

The Court held the judge was entitled to reject the alleged settlement as wholly incredible on the totality of contemporaneous documentary evidence and inconsistent versions given by the defendant, and even if an agreement had been alleged it would be legally ineffective for want of consideration under Foakes v Beer and Selectmove; accordingly there was no triable defence and the appeal was dismissed.

Citation
BANK OF CHINA (HONG KONG) LTD v. COSAN LTD AND OTHERS
Parties
Plaintiff, Respondent: Bank of China (Hong Kong) Limited; 1st Defendant: Cosan Limited; 2nd Defendant, Appellant: Kwan Hin Chu; 3rd Defendant: Kwan Hin Kee
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
11 May 2007
Case Number
CACV331/2006
Procedural Posture
Civil Appeal (court of Appeal) / Judgment on Appeal From High Court (order 14 Summary Judgment)
Outcome
Appeal dismissed
Legal Topics
Summary Judgment (order 14), Consideration and Variation of Debt, Settlement Agreement, Guarantor Liability, Mortgagee Power of Sale, Accord and Satisfaction
Source Language
EN
Contract Law Civil Procedure Suretyship/guarantee Property Law Debt Recovery Summary Judgment (order 14) Consideration and Variation of Debt Settlement Agreement +3 more

Case Brief

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Parties

Bank of China (Hong Kong) Limited

Plaintiff, Respondent

Cosan Limited

1st Defendant

Kwan Hin Chu

2nd Defendant, Appellant

Kwan Hin Kee

3rd Defendant

Procedural Posture

Civil Appeal (court of Appeal) / Judgment on Appeal From High Court (order 14 Summary Judgment)

Legal Issues

  1. 1 Whether a binding settlement agreement (variation) existed that varied guarantor liability to monthly instalments
  2. 2 Whether the defendant discharged the burden to show a triable defence in Order 14 proceedings
  3. 3 Whether the alleged variation was supported by consideration and thus legally enforceable

Ratio Decidendi

The Court held the judge was entitled to reject the alleged settlement as wholly incredible on the totality of contemporaneous documentary evidence and inconsistent versions given by the defendant, and even if an agreement had been alleged it would be legally ineffective for want of consideration under Foakes v Beer and Selectmove; accordingly there was no triable defence and the appeal was dismissed.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Costs of the appeal to be paid by the 2nd Defendant to the Plaintiff