4 Sept 2013
Summary judgment was correctly entered and the stay was correctly refused because the written tenancy did not impose repair obligations on the landlord; the defendant had no legal basis to withhold rent or to defeat the plaintiff's claim by counterclaim; the short delay in seeking leave to appeal did not justify extension because the appeal had no real prospect of success.
7 Jul 2009
The statutory demand was set aside and the bankruptcy petition dismissed because the applicant demonstrated a substantive counterclaim that exceeded the debt specified in the demand under Rule 48(5)(a), and the court exercised its discretion to allow the late application because the delay caused no prejudice to the respondent.
7 Jul 2009
The statutory demand was set aside because the applicant demonstrated a substantive counterclaim that exceeded the debt in the demand invoking r48(5)(a); the out of time application was excused because the substantive ground was valid and the respondent suffered no prejudice; the respondent was entitled to pursue the costs order as she had funded the proceedings and other defendants waived benefit.
13 Jan 2009
The counterclaim was struck out for the purpose of the application because it disclosed no triable issue: no completion date in the sub-contract, no incorporation of main contract terms, no contemporaneous complaint or evidence of loss, and lack of particulars; the contract sum disparity (HK$334,370) did not justify summary judgment given the high threshold and the likelihood of trial on variations; the variations claim was sufficiently substantial and contested to preclude summary determination and warranted conditional leave to defend subject to payment of HK$2.5 million into court; accordi…
24 Jan 2007
The appeal was dismissed because the plaintiff is a foreign resident with no demonstrated freely available assets in Hong Kong (the US$100,000 paid into court is not available), the Master's exercise of discretion to order security for costs of HK$450,000 was reasonable, and the stay was properly imposed though it should be varied to allow an application to determine the status/release of the US$100,000 with opportunity for defendants to file opposing affidavits.
3 Sept 2003
The applications were dismissed because the applicants failed to establish a genuine and serious counterclaim or set-off equal to the judgment debt; contemporaneous documents (solicitor correspondence and respondent's affirmation and payment of estate duty) materially contradicted the applicants' allegations; the alleged trust claim was too uncertain and should have been raised in the prior probate action such that issue estoppel and the applicants' failure of proof required refusal to set aside the statutory demands; residual discretion under rule 48(5)(d) was not engaged.
12 Oct 2000
The court set aside the statutory demand because the Applicant demonstrated a cross claim that equalled the outstanding debt and was not shown to be palpably untrue on affidavits; the delays and service difficulties did not amount to special circumstances to deny relief, and setting aside the demand does not prevent creditors from pursuing execution.
17 Mar 1998
The appeal is dismissed because (1) the Court of Appeal's striking out of the notice of appeal was due to the appeal being filed out of time and the appellant's refusal to seek leave, not because of any decisive falsehood by Respondent's counsel; (2) the asserted counterclaim is inadequately pleaded, unsupported by required affidavit evidence, and misconceived because the Bar Council lacks independent legal personality for such a claim and the causes of action lack particulars; and (3) the Basic Law and Hong Kong Reunification Ordinance preserve pre‑handover orders and proceedings, so the cos…
31 Jul 1991
The court held that material obtained under Order 49B and by discovery may, in the court's discretion, be used to prove a bankruptcy petition; the respondents satisfied the court that the prohibition order was within s21B and not improperly obtained; the Murjanis failed to establish a genuine, quantifiable cross-demand equal to or exceeding the judgment debt; accordingly the June motion and B.K. Murjani's application to set aside the bankruptcy notice were dismissed and the petition was allowed to proceed.
31 Jul 1991
The court exercised its discretion to admit and use material from Order 49B/examinations and discovery in the bankruptcy proceedings, found on the evidence that the claimed counterclaims were speculative, lacked sufficient quantum and reasonable probability of success to satisfy s.3(1)(g), and concluded SBI's prohibition order fell within the legitimate scope of s.21B; accordingly Mr Murjani's June motion and B.K. Murjani's application were dismissed and no stay or dismissal of the petition was warranted.