Hong Kong Case Law: Decisions & Judgments

Topic

Penalty doctrine

Legal area

Court

21 Apr 2017

LEI SHING HONG CREDIT LTD v. KINGSFINE INTERNATIONAL LTD AND ANOTHER

Citation

LEI SHING HONG CREDIT LTD v. KINGSFINE INTERNATIONAL LTD AND ANOTHER
Court

Court of First Instance
Case number

HCMP1169/2016

There are bona fide triable issues on both alleged inducement by misrepresentation (including whether the broker acted for the lender) and on whether the 4% monthly service charge is a penalty; therefore summary adjudication for the plaintiff is inappropriate and the originating summons must proceed to full trial (converted to writ) with specified directions; the interim payment application is dismissed.
30 Aug 2016

AMERICAN INTERNATIONAL GROUP, INC AND ANOTHER v.. X Company

Citation

AMERICAN INTERNATIONAL GROUP, INC AND ANOTHER v.. X Company
Court

Court of First Instance
Case number

HCCT60/2015

Plaintiffs failed to prove that the Majority of the Tribunal consciously disregarded the parties' chosen New York law; the Award shows the Majority considered and sought to apply relevant New York authorities and, even if wrong in law, such errors do not amount to unauthorized amiable composition or excess of mandate warranting setting aside; therefore the application to set aside the Award is dismissed and costs are awarded to the Defendant on an indemnity basis with certificate for two counsel.
14 Jun 2012

HUNG FUNG ENTERPRISES HOLDINGS LTD AND ANOTHER v. THE AGRICULTURAL BANK OF CHINA

Citation

HUNG FUNG ENTERPRISES HOLDINGS LTD AND ANOTHER v. THE AGRICULTURAL BANK OF CHINA
Court

Court of Appeal
Case number

CACV235/2010

The Court of Appeal upheld To J: the July 1996 consensus was at most an agreement subject to approval (not a concluded binding oral contract) because the nature of the transaction required credit approval, new loan and PRC mortgage registration; alternatively, even if concluded the contract was governed by PRC law and invalid because the PRC Foreign Economic Contract Law required written form for such contracts; claims for misrepresentation, breach of warranty and conversion failed; the defendant's counterclaim succeeded; the PRC double interest award was penal and not enforced by the Hong Ko…
1 Dec 2011

AMCOR PACKAGING (ASIA) PTY LTD v. LI WEI BO

Citation

AMCOR PACKAGING (ASIA) PTY LTD v. LI WEI BO
Court

Court of First Instance
Case number

HCA1351/2009

The application for summary judgment was dismissed because the defendant discharged the burden of showing arguable defences and genuine triable issues—notably that the required consolidated audited accounts may not have been duly delivered and that implied terms may exist—such that the matters (including whether the formula is a penalty or the contract gaming) require full trial determination.
23 Sept 2004

YING HO CO LTD AND OTHERS v. THE SECRETARY FOR JUSTICE

Citation

YING HO CO LTD AND OTHERS v. THE SECRETARY FOR JUSTICE
Court

Court of Final Appeal
Case number

FACV17/2003

The Court held the Director had power under the DDH clause to withhold approval on aviation‑safety height grounds provided no derogation from the grant resulted; the only implied contractual term was that the building covenant period would be extended if the Government culpably delayed or unduly delayed processing so as to prevent completion; on the facts the courts below correctly found Government did not cause such delay up to April 1996; accordingly Government was entitled to retain its remedies and the appeal is dismissed, with the issue of reimbursement of amounts paid under protest left…
18 Jul 2002

BO HU DEVELOPMENT CO. LTD. v. SUEN KWAI KAM AND ANOTHER

Citation

BO HU DEVELOPMENT CO. LTD. v. SUEN KWAI KAM AND ANOTHER
Court

Court of Appeal
Case number

CACV148/2002

The Court upheld the trial judge's factual findings on the oral agreement and credibility, held that no term could be implied permitting amendments given the accepted oral agreement, held the defendants were entitled to the 3% commission, and concluded there was insufficient evidence of risk to justify retention of the 30% part payment which therefore constituted a penalty and must be returned to the plaintiff.
4 Mar 2002

YING HO COMPANY and Others vs THE SECRETARY FOR JUSTICE

Citation

YING HO COMPANY and Others vs THE SECRETARY FOR JUSTICE
Court

Court of First Instance
Case number

HCA10834/1998

Only a narrow implied term was necessary: if culpable/unreasonable government delay prevents the grantee complying with building covenant periods, the period must be extended for that delay. Court found no culpable delay by Government between May 1994 and April 1996, no binding agreement by SPEL to grant free extensions, and the premia paid were valid consideration for forbearance. Therefore plaintiffs' principal claims fail and payments under protest are not recoverable absent duress or bad faith, neither of which was made out.
19 Oct 2001

BO HU DEVELOPMENT CO. LTD. v. SUEN KWAI KAM AND ANOTHER

Citation

BO HU DEVELOPMENT CO. LTD. v. SUEN KWAI KAM AND ANOTHER
Court

Court of First Instance
Case number

HCA16913/1999

The judge found the Plaintiff confirmed the specimen application and the 1st Defendant did not promise post-issuance amendments; the Letter of Credit was issued in accordance with those confirmed terms; the 30% deposit was an agreed, commercially reasonable forfeiture protecting the bank/applicant's risk and not a penalty; consequently the Plaintiff's claims fail and the 1st Defendant's counterclaim for commission succeeds in part.
27 Jan 1999

UNITED MARBLE CO. LTD. v. SOUNDWILL INVESTMENT LTD.

Citation

UNITED MARBLE CO. LTD. v. SOUNDWILL INVESTMENT LTD.
Court

Court of First Instance
Case number

HCCT19/1998

United Marble was entitled to judgment for the claimed sums because Soundwill prevented the architect's certification and had breached the contract before the writ; the liquidated damages claim was a penalty and unenforceable; the granite cladding met the contractual and reasonable workmanship standard given natural variation and Soundwill failed to prove breach, so the counterclaim failed.
22 Dec 1994

CHAO MEI HUA AND ANOTHER v. FERRIER INVESTMENT LTD.

Citation

CHAO MEI HUA AND ANOTHER v. FERRIER INVESTMENT LTD.
Court

Court of First Instance
Case number

HCMP1530/1994

The statutory presumption in s13(4) of the Conveyancing and Property Ordinance that the 1974 recitals are true was not displaced by the purchasers' evidence; accordingly the assignments operated to pass title to the vendor's predecessor and the vendor proved title; the purchasers repudiated the agreement by failing to complete on the due date; determination of enforceability of the forfeiture clause is adjourned.