STEPHEN LIU YIU KEUNG v. OPEN SHARE INVESTMENTS LTD

STEPHEN LIU YIU KEUNG v. OPEN SHARE INVESTMENTS LTD

The court refused the adjournment because the defendants failed to demonstrate an arguable defence that would justify delaying the hearing: the proposed ground to set aside registered legal charges for alleged failure to advance agreed facilities lacked legal basis (remedy would be damages, not discharge of securities), supporting proceedings did not seek rescission, the 2000 Memorandum effectively affirmed the charges, and the plaintiff would suffer grave prejudice if possession were delayed; accordingly the applications for adjournment were dismissed and costs awarded to the plaintiff.

Citation
STEPHEN LIU YIU KEUNG v. OPEN SHARE INVESTMENTS LTD
Parties
Plaintiff (receiver): Stephen Liu Yiu Keung; Defendant (tenant): Akan Group Limited; Defendant (tenant): Open Share Investments Limited; Defendant (tenant): Winko Motor Industries Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 August 2004
Case Number
HCA928/2004
Procedural Posture
Civil (possession, Declaration, Injunction, Summary Judgment; Receivership; Property) / Interlocutory — Application for Adjournment of Order 14 Hearing and Pending Summonses for Summary Judgment and Interlocutory Mandatory Injunction (hearing Scheduled)
Outcome
Applications for adjournment dismissed; summonses for adjournment dismissed
Legal Topics
Tenancy Agreements, Legal Charges (registered Mortgages), Summary Judgment, Adjournment Applications, Setting Aside Securities, Failure of Consideration, Prejudice to Applicant
Source Language
EN
Property Law Civil Procedure Injunctions Contract Law Receivership Banking and Secured Transactions Tenancy Agreements Legal Charges (registered Mortgages) +5 more

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Parties

Stephen Liu Yiu Keung

Plaintiff (receiver)

Akan Group Limited

Defendant (tenant)

Open Share Investments Limited

Defendant (tenant)

Winko Motor Industries Limited

Defendant (tenant)

Procedural Posture

Civil (possession, Declaration, Injunction, Summary Judgment; Receivership; Property) / Interlocutory — Application for Adjournment of Order 14 Hearing and Pending Summonses for Summary Judgment and Interlocutory Mandatory Injunction (hearing Scheduled)

Legal Issues

  1. 1 Whether an adjournment should be granted to enable the defendants to file evidence and retain counsel
  2. 2 Whether the defendants' proposed defence (that legal charges are voidable due to an alleged agreement to increase bank facilities to HK$2.3bn and consequent failure of consideration) discloses an arguable triable issue
  3. 3 Whether tenancy agreements are void for lack of prior written consent of the chargee bank

Ratio Decidendi

The court refused the adjournment because the defendants failed to demonstrate an arguable defence that would justify delaying the hearing: the proposed ground to set aside registered legal charges for alleged failure to advance agreed facilities lacked legal basis (remedy would be damages, not discharge of securities), supporting proceedings did not seek rescission, the 2000 Memorandum effectively affirmed the charges, and the plaintiff would suffer grave prejudice if possession were delayed; accordingly the applications for adjournment were dismissed and costs awarded to the plaintiff.

Court Disposition

Applications for adjournment dismissed; summonses for adjournment dismissed

Orders

  • The defendants\' summonses for adjournment are dismissed
  • Costs of the summonses to be paid by the defendants to the plaintiff