30 Sept 2022
The late charge was a bona fide administrative charge serving the legitimate interest of ensuring compliance with the members' undertaking; the fixed HK$3,000 sum was not extravagant or disproportionate to that legitimate interest and therefore was not a penalty and not Wednesbury unreasonable; the appeal is dismissed.
15 Dec 2017
The Court refused leave to appeal because the Presiding Officer's findings were supported by evidence and lawful exercise of discretion, the contested clauses were correctly characterised as penal and unenforceable for lacking a genuine pre‑estimate of loss, and no error of law or jurisdiction was demonstrated under s32(1) LTO.
16 Feb 2015
The Court stayed the appeal and the execution of the inspection order because the plaintiff's asserted entitlement to inspect company documents under s152FA is contingent upon the substantive resolution of the SPA disputes currently subject to parallel English proceedings and further appeal to the UK Supreme Court; inspection must serve a proper purpose and it is inappropriate to permit execution while the determinative legal issues remain unresolved.
9 Nov 2004
Clause 9.3 is not a penalty and is enforceable; however the 2% default uplift is payable on the whole loan only from the date the lenders validly called the loan by written notice (16 April 2003), not from the earlier missed instalment; plaintiffs are also entitled to six days post-judgment interest at the rate earned by the court on the deposited judgment funds; costs nisi to plaintiffs.
12 Mar 2004
The court refused Aoki leave to appeal because none of the grounds raised demonstrated that the Arbitrator was obviously or seriously wrong under the Swire principles; the Arbitrator lawfully rejected the penalty, time-at-large, omission/prevention and architect duty arguments. The Arbitrator's correction under AO s.19 was effective and, under AO s.2GG, judgment for the corrected net award (Sum Z) was to be entered for HKIE, but all enforcement applications were to be returnable before the same judge to allow consideration of the Japanese rehabilitation scheme and to give appropriate comity-b…
30 Dec 1996
Clause 9.2 was ambiguous but pre-contractual negotiations showed the defendants warranted that the plaintiffs' share of profits would not be less than $450,000 by 31 December 1995; accordingly the obligation to pay $900,000 arose on breach of that warranty and the clause, being payable irrespective of actual loss, was a penalty and unenforceable.
6 May 1996
The court refused the application to re-amend the Statement of Claim, holding that the proposed amendment would introduce a new cause of action that would be statute-barred if commenced afresh, would disrupt the settled trial by raising multiple new issues requiring fresh evidence and would cause prejudice and potential injustice to the defendants (including a deceased defendant); accordingly the court exercised its discretion to refuse the amendment.
3 Oct 1991
The court held that the agreement's clauses making punctual payment 'the essence', the termination power on default and the damages provision must be read together; accordingly the defendant's failure to pay two instalments was treated as repudiation which the plaintiff validly accepted, entitling the plaintiff to the damages claimed of $57,953.18 plus interest and costs.
24 Apr 1991
The Court allowed the appeal, holding the impugned provisions were not penalties because the minimum daily sum and mitigation provisions did not apply to this contract (no express right of sectional take-over existed under clause 31), so the matters relied on to characterise the clause as a penalty fell away; accordingly the declarations below were quashed and costs were awarded to the Attorney General.
29 Aug 1975
Order 84 RSC applies to proceedings in the District Court under Rule 9 of the District Court Civil Procedure Rules; where a plaintiff sues for a stipulated sum as a debt or liquidated demand arising from a hire-purchase agreement leave under O.84 R.3 must be obtained before entering judgment in default and leave must be refused if there are reasonable grounds that the sum claimed may be a penalty, otherwise leave will be granted.