20 Sept 2024
The court held the adjudicator did not commit any legal error in applying established authorities that deposits paid at the lease outset may be forfeited on tenant breach and that equitable relief is limited to unconscionable cases; the adjudicator's factual findings were supported by evidence, so leave to appeal was rightly refused.
13 Sept 2024
The Break Fee was a primary obligation under the Term Sheet and Deeds of Indemnity and therefore not a penalty; the factual complaints about newly imposed conditions and sabotage were not reasonably arguable on the evidence and the conditions (signed release, subordination) were within the parties' contemplation; challenged phrases were not part of the binding terms so uncertainty is irrelevant; accordingly summary judgment was appropriate for PACM on its HK$6.8m counterclaim and the plaintiffs' claim was struck out.
29 Sept 2021
The court held the loan was an exempted corporate loan under the MLO so Order 83A did not apply; the contractual primary interest of 10% and default interest of 12% (compounded as provided) were commercial terms that were neither extortionate under s.25 MLO nor penalty in nature under the modern test; no credible vitiating factors were shown (no undue influence, no proven lack of knowledge), therefore plaintiff was entitled to summary judgment for the computed sum and to possession with limited post-judgment interest and costs.
18 Jun 2020
The court found no triable issues: the bank was entitled to appropriate payments in the absence of directions; the FXPF contracts were not shown to be void for execution abroad, duress, unfairness or excessive risk; the Early Termination Amounts were not penal under Cavendish; interest notification via the bank's website satisfied the agreement; statutory affidavit formalities did not preclude summary judgment; accordingly summary judgment entered for plaintiff for the outstanding sums, vacant possession ordered where mortgagors defaulted, and the conversion application dismissed.
29 Dec 2014
Clause 30, read in its natural and ordinary meaning and the factual matrix, precluded the purchaser from raising requisitions or delaying completion on grounds of any unauthorized additions, alterations or illegal structures irrespective of whether the legal basis is the Buildings Ordinance, the Government Lease (SC7/SC8) or the Deed of Mutual Covenant; the plaintiff had sufficient knowledge of the defects; and the 15% deposit was not an unenforceable penalty on the facts, so the defendant was entitled to forfeit the deposit and the appeal was dismissed.
1 Dec 2014
Leave to appeal was refused because the proposed grounds principally attacked the trial judge's findings of fact which do not meet the high threshold for appellate interference; the exclusion of the SMS was a correct case management exercise; the penalty argument was unpleaded and too late to raise on appeal; therefore the intended appeal had no reasonable prospect of success.
1 Jun 2012
Leave to appeal dismissed because the intended appeal lacked reasonable prospects: the trial judge's factual findings and credibility assessments were supported by evidence, the Compensation Provision was properly held to be a genuine pre-estimate in the commercial context and not a penalty, contra proferentem did not alter the evidential assessment, and no error in principle was shown in the costs award of 95% to the plaintiff.
12 Dec 2007
The Court of Appeal held that laches could not be invoked to defeat the plaintiff's contractual entitlement to default interest because the claim was brought within the applicable 12-year limitation period for a deed; the stipulated default interest under the DMC was not a penalty and was enforceable; interest from the date of the writ to judgment is payable as of right under the contractual entitlement and not subject to the court's discretionary rate under section 49; accordingly the trial judge erred in cutting down the contractual default interest to a two-year accrual period and in apply…
19 Dec 2005
Summary judgment granted against the 1st-named defendant: defendants failed to establish arguable triable defences. Misrepresentation defence fails because evidence does not establish that the agent had actual or ostensible authority to make the alleged representations on behalf of the plaintiffs. Non est factum fails because the 1st defendant knew the nature of the transaction and was negligent in signing blank documents. Clause 7 fixing double deposit (HK$160,000) is not shown to be a penalty on the evidence. 2nd defendant raised an arguable issue on authority and is given unconditional lea…
31 May 2005
Defendants failed to show any triable issue: the AP's certificate of completion and the Director of Lands' consent to assign establish completion; defendants did not validly rescind within contractual time limits and thus elected to wait for completion; alleged agent misrepresentation is unsupported and, in any event, could not revive the rescission right; consequently the defence and counterclaim are plainly unsustainable and summary judgment and strike out were appropriate.