DBS BANK (HONG KONG) LTD v. EXCELLENT ACCOUNTING AND SECRETARIAL LTD AND ANOTHER

DBS BANK (HONG KONG) LTD v. EXCELLENT ACCOUNTING AND SECRETARIAL LTD AND ANOTHER

The Bank proved a prima facie case by producing the signed Guarantee, related loan documents and a handwriting expert report attributing the signatures to D2; D2 failed to provide credible particulars or evidence of forgery, misrepresentation, agency or other vitiating factors and therefore did not raise any triable issue — summary judgment was appropriate and the counterclaim(s) based on those defences must be struck out.

Citation
[2023] HKDC 83
Parties
Plaintiff: The Bank; 1st Defendant: The Company; 2nd Defendant: D2; 2nd Defendant by Counterclaim: Yim Chun Wai
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
19 January 2023
Case Number
DCCJ3085/2019
Procedural Posture
Civil Debt/guarantee Enforcement / Order 14 Summary Judgment Application — Decision
Outcome
Summary judgment entered for the plaintiff against the 2nd defendant; counterclaim(s) struck out
Legal Topics
Summary Judgment, Guarantee Enforcement, Non Est Factum, Misrepresentation, Forgery, Burden of Proof
Source Language
EN
Contract Civil Procedure Banking Law Fraud/forgery Agency/imputation of Knowledge Summary Judgment Guarantee Enforcement Non Est Factum +3 more

Case Brief

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Parties

The Bank

Plaintiff

The Company

1st Defendant

D2

2nd Defendant

Yim Chun Wai

2nd Defendant by Counterclaim

Procedural Posture

Civil Debt/guarantee Enforcement / Order 14 Summary Judgment Application — Decision

Legal Issues

  1. 1 Whether the plaintiff established a prima facie sustainable case against the 2nd defendant
  2. 2 Whether the 2nd defendant raised triable issues or a bona fide defence to defeat summary judgment
  3. 3 Whether the signatures on the Guarantee and loan documents were forged

Ratio Decidendi

The Bank proved a prima facie case by producing the signed Guarantee, related loan documents and a handwriting expert report attributing the signatures to D2; D2 failed to provide credible particulars or evidence of forgery, misrepresentation, agency or other vitiating factors and therefore did not raise any triable issue — summary judgment was appropriate and the counterclaim(s) based on those defences must be struck out.

Court Disposition

Summary judgment entered for the plaintiff against the 2nd defendant; counterclaim(s) struck out

Orders

  • Summary judgment for the plaintiff against the 2nd defendant for HK$2,445,692.11
  • Interest on HK$1,018,737.24 at 14.375% per annum from 10 June 2019 to date of judgment and thereafter at judgment rate until payment