UNION BEST ENGINEERING LTD v. CHING NGAR ENGINEERING LTD AND ANOTHER

UNION BEST ENGINEERING LTD v. CHING NGAR ENGINEERING LTD AND ANOTHER

The judge accepted the Plaintiff's account that the 2nd Defendant requested and received a cash cheque and, under pressure and after telephone consultation with his partner, orally guaranteed that the 1st Defendant would perform the termination agreement; contemporaneous alteration of the agreement's signature page...

Source-derived case information.

Citation
UNION BEST ENGINEERING LTD v. CHING NGAR ENGINEERING LTD AND ANOTHER
Parties
Plaintiff: Union Best Engineering Limited; 1st Defendant: Ching Ngar Engineering Limited; 2nd Defendant: Chu Wai Wing
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
17 September 2004
Case Number
DCCJ6376/2003
Procedural Posture
Civil Breach of Contract (termination Agreement), Claim for Damages and Indemnity / Judgment After Trial (district Court)
Outcome
Finding for Plaintiff on existence of an oral personal guarantee by the 2nd Defendant that the 1st Defendant would perform the termination agreement; declaration that 1st and 2nd Defendants are liable to indemnify Plaintiff for the Labour Tribunal award of HK$556,770 upon proof of payment; costs to Plaintiff nisi to...
Legal Topics
Termination Agreement, Oral Guarantee, Personal Guarantor Liability, Liability for Unpaid Wages, Indemnity Upon Payment, Costs
Source Language
en
Contract Guarantee Indemnity Employment/labour Law Civil Procedure Termination Agreement Oral Guarantee Personal Guarantor Liability +3 more

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Parties

Union Best Engineering Limited

Plaintiff

Ching Ngar Engineering Limited

1st Defendant

Chu Wai Wing

2nd Defendant

Procedural Posture

Civil Breach of Contract (termination Agreement), Claim for Damages and Indemnity / Judgment After Trial (district Court)

Legal Issues

  1. 1 Whether the 2nd Defendant gave an oral guarantee that the 1st Defendant would comply with the termination agreement
  2. 2 Whether the 2nd Defendant was a party to the written termination agreement
  3. 3 Whether the 2nd Defendant was personally liable even if not a contracting party

Ratio Decidendi

The judge accepted the Plaintiff's account that the 2nd Defendant requested and received a cash cheque and, under pressure and after telephone consultation with his partner, orally guaranteed that the 1st Defendant would perform the termination agreement; contemporaneous alteration of the agreement's signature page and surrounding conduct supported inferring an oral guarantee; accordingly the 2nd Defendant is bound as guarantor and the court granted a conditional indemnity declaration for the Labour Tribunal award upon proof of payment and an order nisi for costs.

Court Disposition

Finding for Plaintiff on existence of an oral personal guarantee by the 2nd Defendant that the 1st Defendant would perform the termination agreement; declaration that 1st and 2nd Defendants are liable to indemnify Plaintiff for the Labour Tribunal award of HK$556,770 upon proof of payment; costs to Plaintiff nisi to...

Orders

  • Declaration that the 1st and 2nd Defendants are liable to indemnify the Plaintiff in the sum of HK$556,770 payable under LBTC10033/2003 upon proof that such payment has been made by the Plaintiff
  • Order nisi that the 1st and 2nd Defendants pay the Plaintiff's costs of the action to be taxed if not agreed with Certificate for Counsel