Hong Kong Case Law: Decisions & Judgments

Topic

Best endeavours

Legal area

Court

18 May 2023

HONGKONG JHC CO., LTD (IN LIQUIDATION) v. PEKING UNIVERSITY FOUNDER GROUP CO LTD

Citation

[2023] HKCFI 1350
Court

Court of First Instance
Case number

HCA1418/2021

Clause 2.2 (regulatory approvals) is not a condition precedent but an excuse/defence that relieves PUFG only if it proves on the balance of probabilities that it used its best efforts and that approvals were impossible; PUFG failed to show it took any steps and thus breached the Keepwell Deed obligations (notably clause 4.1(i)) in respect of FIHK/Kunzhi as at 31 December 2019; Hong Kong declaratory judgments can be of utility in Mainland reorganisation and plaintiffs' claims were not barred by their submissions to the Mainland process in the form pursued here; consequential remedies awarded a…
19 Apr 2017

CHU YIN FAN v. INTER RIVERS LTD

Citation

CHU YIN FAN v. INTER RIVERS LTD
Court

District Court
Case number

DCCJ4314/2012

The application for leave to appeal out of time was dismissed because, although the short delay was excusable, the proposed appeal lacked a reasonable prospect of success: the court correctly applied De Monsa to conclude there was no real risk that the missing original Assignment would give rise to a prior encumbrance on title, the defendant's answers to requisitions were adequate (so statutory declarations or further conveyancing evidence were unnecessary), the alleged implied best‑endeavours term was arguable but factual disputes (including whether the purchaser used best endeavours by appl…
19 Aug 2016

CHU YIN FAN v. INTER RIVERS LTD

Citation

CHU YIN FAN v. INTER RIVERS LTD
Court

District Court
Case number

DCCJ4314/2012

On the affidavit material the court concluded that it was arguable there was no real risk that the missing original Assignment would give rise to a successful prior encumbrance; under De Monsa missing documents alone do not entitle a purchaser to refuse completion absent real risk; the defendant raised triable factual issues (including best endeavours to obtain finance and causation of bank refusal) and therefore had an arguable defence — summary judgment was inappropriate and defendant was given unconditional leave to defend.
24 Dec 2012

HONG JING CO LTD v. ZHUHAI KWOK YUEN INVESTMENT CO LTD

Citation

HONG JING CO LTD v. ZHUHAI KWOK YUEN INVESTMENT CO LTD
Court

Court of Appeal
Case number

CACV254/2011

The plaintiff's claim for an account of profits is unliquidated because the amount must be assessed; therefore it does not qualify as an appeal 'as of right' under s.22(1)(a). The 'or otherwise' limb does not apply because ordering a retrial on limited issues does not produce grievous injustice or an exceptional circumstance warranting leave. Consequently both leave applications are refused and the retrial ordered by the Court of Appeal stands.
8 Aug 2005

OKACHI (HONG KONG) CO LTD v. NOMINEE (HOLDING) LTD

Citation

OKACHI (HONG KONG) CO LTD v. NOMINEE (HOLDING) LTD
Court

Court of First Instance
Case number

HCA4596/2000

Clauses 3.2, 3.3 and 4.4 are conditions relating to time and manner of performance; the defendant delayed some eight months, pursued a subsale and only belatedly prepared inadequate applications, thereby failing to apply promptly and to use best endeavours; that conduct amounted to repudiatory breach entitling the plaintiff to rescind; defendant's arguments that rescission was premature or that plaintiff affirmed or breached so as to lose rescission were rejected.
11 Dec 1998

CCA MANAGEMENT CO. LTD. v. SHENZHEN SAND RIVER GOLF CLUB LTD.

Citation

CCA MANAGEMENT CO. LTD. v. SHENZHEN SAND RIVER GOLF CLUB LTD.
Court

Court of First Instance
Case number

HCA14679/1996

The written agreement and its written variation altered fees only and did not create a contractual promise that the current manager would be the last; an implied term limiting excessive turnover exists but was not breached on these facts (the manager served one year); therefore Defendant was not entitled to terminate for the manager's removal or transfer.
29 Jul 1991

LUNG YUK LUN AND ANOTHER v. GRATEFULFIT INDUSTRIAL LTD

Citation

LUNG YUK LUN AND ANOTHER v. GRATEFULFIT INDUSTRIAL LTD
Court

Court of First Instance
Case number

HCMP1497/1991

Clause 26(a) constituted a condition precedent that suspended the vendors' obligation to specifically perform until the lender's consent was obtained and, because consent was not obtained within 60 days, the contractual obligation terminated and the agreement became null and void; the condition was not waivable by the purchaser and the court must grant the declaratory relief and vacate registration.
17 Oct 1989

TIN SHUI WAI DEVELOPMENT LTD v. ATTORNEY GENERAL

Citation

TIN SHUI WAI DEVELOPMENT LTD v. ATTORNEY GENERAL
Court

Court of First Instance
Case number

HCCT5/1987

The defendant failed to satisfy the court that separating liability issues would demonstrably serve the balance of justice and convenience; the complexities created by subsequent documents and conduct meant the safer course was to try all liability issues together at one trial, so the application for staged separate liability trials was refused and the matter listed for an ordinary unified liability trial.
5 May 1987

BEE KAY AND CO. (H.K.) LIMITED v. WOMBAT LINES INC. AND ANOTHER

Citation

BEE KAY AND CO. (H.K.) LIMITED v. WOMBAT LINES INC. AND ANOTHER
Court

Court of First Instance
Case number

HCA10790/1982

The Bank Indemnity was forged; the telexes and the letter constituted a binding agreement that goods would be released only against a Bank Indemnity; defendants released goods without a valid indemnity and thus breached that agreement and are liable to the plaintiffs; the common‑law indemnity principle relied on by defendants did not apply because the agents did not act honestly and bona fide with a valid indemnity (they had a worthless document), the contract was not an insurance/surety requiring utmost good faith, and the defendants did not satisfy the requisite standard (express term or be…