Hong Kong Case Law: Decisions & Judgments

Topic

Assignment and novation

Legal area

Court

17 Sept 2020

SWALLOW KINGDOM HOLDINGS LTD v. LO KOK SHING LEO AND OTHERS

Citation

[2020] HKCFI 2396
Court

Court of First Instance
Case number

HCA2260/2016

Court found D1 and D2 made the key representations and entered into the verification exercise and Undertaking Agreement; clause 6.6 of the SPA survived the Supplemental Agreement and obliges the sellers to bear liabilities discovered after completion; receivables remained company assets and could not be transformed into personal liabilities of defendants without assignment/novation so that claim failed; Undertaking Agreement did not bind D3 and D4; damages awarded only for RI and SH litigation losses proven and pleaded; other claims and counterclaims dismissed.
9 Aug 2004

WSP HONG KONG LTD v. BCW LTD AND OTHERS

Citation

WSP HONG KONG LTD v. BCW LTD AND OTHERS
Court

District Court
Case number

DCCJ1320/2003

The court construed ‘Continuing Contracts’ as referring to outstanding rights, benefits and privileges under contracts as at the transfer date and held Project J0716 met that definition while not constituting a ‘Receivable’ because no ascertainable debt existed as at 31 March 2000; accordingly the Plaintiff was entitled to the HK$318,240 and interest and the defendants' counterclaims based on receivables failed.
31 Mar 2004

EVERGREEN MARINE CORP (TAIWAN) LTD v. LUK CHI YICK t/a FIRST GRAND ENTERPRISE CO

Citation

EVERGREEN MARINE CORP (TAIWAN) LTD v. LUK CHI YICK t/a FIRST GRAND ENTERPRISE CO
Court

Court of First Instance
Case number

HCCL1/2002

Summary judgment refused because the letters of guarantee, on their wording and pleaded case, afforded indemnity to Kaitone not the plaintiff and the alleged assignment did not alter the 1st Defendant's obligation absent notice and consent; material factual disputes exist about the circumstances and effect of the letters which preclude determination on an Order 14 application and require a trial.
26 Mar 2003

DORFIT PROPERTIES LTD v. FUJITA CORPORATION

Citation

DORFIT PROPERTIES LTD v. FUJITA CORPORATION
Court

Court of Appeal
Case number

CACV346/2002

The guarantee was drafted to secure obligations of the Joint Venture as defined and in contemplation of an assignment that never occurred; because there was no novation or effective assignment the Joint Venture never acquired performable obligations and Fujita did not guarantee B+B's separate contractual liabilities. Separately, the trial judge's finding that the employer represented liquidated damages would be waived and that the defendant relied to its detriment gave rise to estoppel preventing the employer from claiming liquidated damages.
26 Jul 2002

DORFIT PROPERTIES LTD v. FUJITA CORPORATION

Citation

DORFIT PROPERTIES LTD v. FUJITA CORPORATION
Court

Court of First Instance
Case number

HCCT127/1999

The guarantee, read strictly and in context, guaranteed performance by the Contractor as defined (the unincorporated Joint Venture). No novation or effective assignment transferred B+B's obligations to the Joint Venture, so those obligations never became due and performable by the Joint Venture; therefore Fujita was not liable under the Joint‑Venture Guarantee for liquidated damages flowing from B+B's defective performance. Costs ordered to follow the event (defendant successful).
6 Mar 1984

BANGY CO LTD v. E. WAH REALTY LTD AND ANOTHER

Citation

BANGY CO LTD v. E. WAH REALTY LTD AND ANOTHER
Court

Court of First Instance
Case number

HCA9605/1983

Defendants produced detailed, contemporaneous and prima facie reliable evidence (affirmations, solicitor drafts and letters) raising triable issues of fact and law—principally the existence of an oral agreement of 13 January 1983 and related issues of lender consent and possible agency/alter ego—which made summary determination under Order 14 inappropriate; accordingly unconditional leave to defend was granted.
6 Mar 1984

BANGY CO LTD v. AIK SAN REALTY LTD AND ANOTHER

Citation

BANGY CO LTD v. AIK SAN REALTY LTD AND ANOTHER
Court

Court of First Instance
Case number

HCA9604/1983

The defendants produced detailed, documented and prima facie reliable evidence of an alleged oral agreement and related communications that raised a genuine triable issue about whether non-defaulting shareholders agreed to assume the defaulting shareholders' liabilities and whether lender consent or agency/alter ego relationships alter the position; those triable issues made summary determination inappropriate and justified unconditional leave to defend.

Hong Kong Case Law

SWALLOW KINGDOM HOLDINGS LTD v. LO KOK SHING LEO AND OTHERS

WSP HONG KONG LTD v. BCW LTD AND OTHERS

EVERGREEN MARINE CORP (TAIWAN) LTD v. LUK CHI YICK t/a FIRST GRAND ENTERPRISE CO

DORFIT PROPERTIES LTD v. FUJITA CORPORATION

DORFIT PROPERTIES LTD v. FUJITA CORPORATION

BANGY CO LTD v. E. WAH REALTY LTD AND ANOTHER

BANGY CO LTD v. AIK SAN REALTY LTD AND ANOTHER