WONG BIK HAR v. GANG PIAO JIA MARKETING LTD AND ANOTHER

WONG BIK HAR v. GANG PIAO JIA MARKETING LTD AND ANOTHER

The appellant failed to raise any arguable triable issues. Contemporaneous documents demonstrated the Loan was advanced by way of three cheques to the nominee nominated by the 1st defendant and the resultant arrangement was either not a material variation or was within the scope of the Guarantee (notably Clause 15.2(b)), which preserved the guarantor's liability; therefore the summary judgment and the order for HK$5,000,000 against the 2nd defendant stood and the appeal was dismissed.

Citation
[2023] HKCFI 3223
Parties
Plaintiff: Wong Bik Har; 1st Defendant: Gang Piao Jia Marketing Limited; 2nd Defendant: Chan Ka Shing
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 December 2023
Case Number
HCA724/2022
Procedural Posture
Order 14 Appeal (summary Judgment) / Decision (appeal Dismissed)
Outcome
Appeal dismissed
Legal Topics
Summary Judgment, Material Variation of Contract, Drawdown/nomination of Recipient, Enforceability of Guarantee, Costs (indemnity)
Source Language
EN
Civil Procedure Contract Guarantee Debt Recovery Summary Judgment Material Variation of Contract Drawdown/nomination of Recipient Enforceability of Guarantee +1 more

Case Brief

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Parties

Wong Bik Har

Plaintiff

Gang Piao Jia Marketing Limited

1st Defendant

Chan Ka Shing

2nd Defendant

Procedural Posture

Order 14 Appeal (summary Judgment) / Decision (appeal Dismissed)

Legal Issues

  1. 1 Whether the Loan was advanced in favour of the 1st defendant or via its nominee
  2. 2 Whether non-compliance with the Loan Agreement or the Drawdown Agreement constituted a material variation discharging the guarantor

Ratio Decidendi

The appellant failed to raise any arguable triable issues. Contemporaneous documents demonstrated the Loan was advanced by way of three cheques to the nominee nominated by the 1st defendant and the resultant arrangement was either not a material variation or was within the scope of the Guarantee (notably Clause 15.2(b)), which preserved the guarantor's liability; therefore the summary judgment and the order for HK$5,000,000 against the 2nd defendant stood and the appeal was dismissed.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Costs order nisi: 2nd Defendant to bear the costs of the action, including the plaintiff's summary judgment application and this appeal, with a certificate for counsel, on an indemnity basis as envisaged by Clause 4 of the Guarantee, to be taxed if not agreed