Million (Far East) Ltd v. Manley Best (International) Food Ltd and Another
Read the full judgment text of HCA 2429/2017 on BabelCite. This High Court CFI judgment was delivered on 2 October 2018.
1. I have before me the following two summonses:
Cited by 1 case · Cites 8 cases
|
HCA 2429/2017 [2018] HKCFI 2193 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2429 OF 2017 _____________
_____________ Before: Deputy High Court Judge Fee in Chambers Date of Hearing: 11 July 2018 Date of Judgment: 2 October 2018 _______________ JUDGMENT _______________ A. THE APPLICATIONS 1.I have before me the following two summonses:
B. BACKGROUND B1. Parties 2.At all material times, the Plaintiff was a supplier of frozen meat. The 1st Defendant was a purchaser of the Plaintiff’s frozen meat. The 2nd Defendant was a director and majority shareholder of the 1st Defendant. 3.The 2nd Defendant was at all material times and still is the beneficial owner of a property situated at Flat G, 20/F, Block 8, No 1124, King’s Road, Kornhill Gardens, Hong Kong (“Property”). It is common ground that the Property is under the Home Ownership Scheme operated by the Hong Kong Housing Authority. B2. Plaintiff’s case 4.The Price Claim is solely against the 1stDefendant. The PriceClaim is for the sum of HK$11,138,251.37 (“Debt”) being the outstandingprice of frozen meat sold and delivered by the Plaintiff to the 1stDefendant between 3 January 2017 and 8 May 2017.[1] 5.The Breach of Agreement Claim is against both the 1st and 2ndDefendants. The events leading to the Breach of Agreement Claim startedwith a meeting in around late January 2017 or early February 2017 between the 2ndDefendant and the Plaintiff to discuss the amount then due from the 1stDefendant to the Plaintiff for the frozen meat supplied.[2] On the Plaintiff’s pleaded case,[3] at that meeting, the 2nd Defendant:
6.It appears not in dispute that on or around 10 March 2017, the 2nd Defendant repaid the remaining balance of the mortgage loan for discharge of the then mortgage of the Property (“Existing Mortgage”).[4] The Plaintiff arranged its solicitors Messrs C L Chow & Macksion Chan to assist the 2nd Defendant in the discharge of the Existing Mortgage, and to collect and pass the title deeds of the Property (“Title Deeds”) to the Plaintiff.[5] 7.The Breach of Agreement Claim is based on a tripartite agreement in Chinese dated 29 May 2017 (the “Repayment Agreement”) made between the Plaintiff, the 1st Defendant and the 2nd Defendant. 8.The main part of the Repayment Agreement is set out in full (and in the original language) below (with the “債權人” and “債務人” therein being the Plaintiff and the 1stDefendant respectively):
9.It is the Plaintiff’s case[6] that:
10.On 29 May 2017, the 2ndDefendant also signed an authorization in English to authorize the Plaintiff’s solicitors to release the proceeds of sale of the Property in favour of the Plaintiff upon sale of the Property (the “Authorization”). 11.The Authorization is set out in full (and in the original language) below:
12.The Plaintiff’s claims may be summed up as follows:
13.In defence of the Counterclaim for Title Deeds, the Plaintiff contends that it did not intend the creation of any charge or mortgage of the Property.[10] The Plaintiff further contends that its possession of the Title Deeds constitutes a contractual lien to ensure the performance of the terms of the Repayment Agreement, in particular Clause 3 thereof (“Contractual Lien Defence”).[11] B3. Defendants’ case 14.The Defendants:
15.The Defendants further contend[14] that:
16.The Defendants further rely on the Authorization and the Plaintiff’s possession of the Title Deeds in support of the Equitable Mortgage Contention and the Counterclaim for Title Deeds.[15] 17.The Defendants deny the Contractual Lien Contention on the ground that the Title Deeds were delivered to the Plaintiff for the purpose of security. They contend that even if the Plaintiff is allowed to artificiallylabel it as a lien, such a lien created by deposit of deeds in the case of land is however in the nature of a mortgage.[16] C. THE APPLICABLE PRINCIPLES 18.The principles applicable on an application for summary judgment are clear and not in dispute:
D. THE ISSUES 19.The issues before the Court are whether:
E. DISCUSSION E1. The Non-delivery Defence 20.The 1stDefendant denies delivery of the frozen meat. However, the 1stDefendant has not even identified what frozen meat set out in the Plaintiff’s invoices has not been delivered but simply put the Plaintiff to strict proof. I accept that it is a bare denial. 21.On the other hand, the Plaintiff has only produced the relevantinvoices in support of the Price Claim. It has not produced any documentary evidence, such as delivery notes or receipts, to prove delivery. 22.Some of the invoices produced in fact bear a printed request for the 1st Defendant to sign on the invoice to acknowledge receipt and fax it back to the Plaintiff within 3 days. However, the Plaintiff has not produced any receipted invoice in support of the Price Claim. 23.I accept that the 1st Defendant has acknowledged the liability to pay the Debt to the Plaintiff under the Repayment Agreement (“Acknowledgement”). I also accept that the Acknowledgement directly supports the Breach of Agreement Claim. However, the Price Claim is a different cause of action. The Acknowledgement is not sufficient evidence in support of delivery under the Price Claim. 24.I have also noted that the Defendants’ own evidence referred to:
25.The Plaintiff submitted that in view of the Acknowledgement, the Discussions and the Payments, the Plaintiff does not have the additional burden to prove delivery of the frozen meat sold.[28] The Plaintiff relies on the observation of DHCJ To in Asparouh Ianev Dimitrov v Dominic Tak Ming Lau HCA 1079/2015 (unreported, 25 October 2017), at paragraph 34, that the “onus on the plaintiff is only to discharge the burden of proof to a degree which is commensurate with the circumstances of the case” in support of its submission. 26.However, the context of Asparouh is different. There, the proposition is basically that as against the transferor of funds, the transferee cannot dispute that the transferor is the owner of the funds, unless he can produce some evidence showing the contrary. Similarly, a tenant who was led into possession of rented property cannot dispute his landlord’s title in the absence of some contrary evidence. Here, the dispute is not about whether the Plaintiff is the owner of the frozen meat sold and delivered, but whether such frozen meat has been delivered at all. 27.As held by the Court of Appeal in Ju Yan Di Emperor Genesisy v Yau Wai Han [2015] 1 HKLRD 822, at paragraphs 14 and 15, in a summary judgment application, the starting point is that the plaintiff must first demonstrate that the defendant has no defence. There, in an action for repayment of loan, it was held that, for a start, the plaintiff must demonstrate that he had indeed lent the money to the defendant. Here, in an action for the price of goods sold and delivered, for a start, the Plaintiff must demonstrate that it had indeed sold and delivered the frozen meat set out in the invoices to the 1stDefendant. 28.As the Plaintiff has not produced sufficient evidence in support of delivery, the Non-delivery Defence is sufficient in resisting summary judgment of the Price Claim from being entered. 29.On the other hand, it is clear that the Non-delivery Defence is merely a shadowy defence in view of the following matters:
30.Since the Non-delivery Defence is merely a shadowy defence, but for my decision in paragraph 43 below to award summary judgment against the 1stDefendant under the alternative Breach of Agreement Claim for its breach of Clause 1 of the Repayment Agreement, I would have ordered the 1stDefendant to make an interim payment in the sum of HK$10 million to the Plaintiff under the Price Claim. Such payment appears sensible and desirable.[33] E2. The Mistake Defence 31.As pointed out above,[34] the Mistake Defence is made on the basis that the Defendants had entered into the Repayment Agreement under the mistaken belief that the Debt is indeed the amount owed by the 1st Defendant to the Plaintiff under the Price Claim (“Mistake”). 32.It is the Defendants’ case that by reason of the Mistake:
33.It is the Defendants’ case that they were misled by Lam into making the Mistake.[35] The Defendants have not suggested that the Plaintiff has also made the Mistake. The Mistake is therefore a unilateral mistake. 34.In my view, as a starting point, the Defendants have failed to condescend upon particulars to prove the Mistake. They have not identifiedwhich amounts in the invoices were mistaken. Moreover, since the Mistakeis based on the assumption that the Debt exceeds the amount of frozen meat actually sold and delivered, the Mistake Defence is subject to the same matters set out in paragraph 29 above which render the Non-delivery Defence shadowy. 35.Moreover, as the Defendants have signed the Repayment Agreement, they have to show that the Mistake entitles them to avoid the Repayment Agreement. 36.As Ribeiro PJ stated in Ming Shiu Chung & Others v Ming Shiu Sum & Others (2006) 9 HKCFAR 334, at paragraph 84:
37.There is however no equitable jurisdiction to set aside a contractwhere one party has made a unilateral mistake as to a fact or state of affairswhich is the basis upon which the terms of the contract are agreed, but that assumption itself does not become a term of the contract.[36] 38.In Statoil ASA v Louis Dreyfus Energy Services LP (The Harriette N) [2008] EWHC 2257 (Comm), the parties had reached a compromise over the amount of demurrage due. One party had made an offer, basing its calculations on a mistaken assumption as to the date the ship had completed its unloading. The mistaken party was not entitled to relief even though the other party was aware of the mistake when it accepted the offer and decided to say nothing. It is because the mistake was not a term of the contract.[37] 39.In the present case, the assumption that the Debt is indeed the amount owed by the 1st Defendant to the Plaintiff under the Price Claim is contained in Recital (A) of the Repayment Agreement. It is a recital rather than a term of the Repayment Agreement. 40.The Mistake is not a mistake as to the terms of the Repayment Agreement. The terms stated did not differ from what the Defendants intended. There was merely a mistake as to facts which formed the basis upon which the terms were agreed. 41.Hence, the Repayment agreement remains binding on the Defendants even if the Plaintiff was aware of the Mistake made by the Defendants. 42.The Mistake Defence per se does not provide a triable issue or an arguable defence to the Breach of Agreement Claim. 43.I find it appropriate to award summary judgment in favour of the Plaintiffagainst the 1stDefendant under the alternative Breach of Agreement Claim for an amount equivalent to the Debt for its breach of Clause 1 of the Repayment Agreement. 44.I now turn to consider whether the Conditional Agreement Defence and the Equitable Mortgage Contention may provide a triable issue or an arguable defence to the Breach of Agreement Claim in favour of the 2nd Defendant. E3. The Conditional Agreement Defence 45.This defence mainly turns on the construction of Clauses 2(b) and 2(c) of the Repayment Agreement, as quoted above and re-quoted below for ease of reference:
46.In gist, the 2ndDefendant contends that she is only liable to make payment under Clauses 2(b) and 2(c) if and only if she has received the Share Sale Proceeds. 47.The whole Agreement is to be considered since every contract is to be construed with reference to its object and the whole of its terms.[38] 48.Before construing Clauses 2(b) and 2(c) of the Repayment Agreement, I take note that terms of the 2ndDefendant’s sale of her shares in the 1stDefendant (“Share Sale”) were also briefly set out in Clause 2(a) of the Repayment Agreement. 49.I accept that Clause 2(a) may not create a separate payment obligation on the 2ndDefendant. It may simply be in the nature of a preamble to the 2ndDefendant’s payment obligation under Clauses 2(b) and 2(c). It also may not create a separate obligation on the 2ndDefendant to sell her shares. The suggestion in paragraph 16 of the Plaintiff’s Reply Points/Speaking Notes that the 2nd Defendant has a separate obligation to sell her shares under Clause 2(a) is not expressly pleaded. It also conflicts with the position taken by the Plaintiff in paragraph 30 of the Plaintiff’s Skeleton. 50.The key words in both Clauses 2(b) and 2(c) are “在上述收到”(upon receipt of the abovementioned) and “當中支付” (to pay out of which). The words “在上述收到” and “當中支付” quite clearly refer to the sale proceeds of the Share Sale (“Share Sale Proceeds”). Such construction is supported by the payment schedule in Clauses 2(b) and 2(c), which tallies exactly with the payment schedule of the Share Sale, ie 8 June 2017 (in respect of HK$25 million) and 14 July 2017 (in respect of HK$45 million). 51.Although receipt of the Share Sale Proceeds is not expressly made a condition precedent in the Repayment Agreement, it does not appear to be necessary. In Astrazeneca UK Ltd v Albemarle International Corp[2011] EWHC 1574 (Comm), Flaux J observed at paragraphs 249 and 250:
52.In Hong Jing Co Ltd v Zhuhai Kwok Yuen Investment Co Ltd [2013] 1 HKLRD 441, Cheung JA at paragraph 39.2 adopted the test for condition precedents as follows:
53.The Plaintiff submitted[39] that courts are generally reluctant to classify terms as condition precedent, and that clear words are required to be used if a term is to be construed as a condition precedent: Heritage Oil and Gas Ltd & Anor v Tullow Uganda Ltd[2014]2 CLC 61, at paragraph 33. However, as mentioned in the same paragraph, the reason for the courts’ reluctance is to avoid depriving a party of a contractual right just because of a trivial breach which has little or no prejudicial effect on the other. Here, the condition does not appear to be trivial. It also has practical significance which is directly linked with the 2ndDefendant’s ability to make payment. Without receipt of the Share Sale Proceeds, the 2ndDefendant did not appear to have the means to pay. 54.The Plaintiff also submitted[40] that receipt of the Share Sale Proceeds is not a condition precedent because it is not of such fundamentalimportance that the Repayment Agreement will never come into being if it does not materialize. The Plaintiff cited Total Gas Marketing Ltd v Arco British Ltd & Others [1998] 2 Lloyd’s Rep 209 at page 215 in support of the above submission. However, as mentioned on that same page, the effectof the failure of a condition precedent depends on the proper construction of the contract. The only effect can be simply the suspension of the parties’ obligations. Such proposition is trite: see Chitty on Contracts (32nd ed) at paragraph 13-028. 55.In the present case, it is at least arguable that the receipt of the Share Sale Proceeds must for all practical reasons materialize, otherwise the obligation to repay upon receipt of the sale proceeds and out of the sale proceeds cannot be fulfilled and hence cannot arise. 56.There is no dispute that the Share Sale did not materialize and the 2nd Defendant did not receive the Share Sale Proceeds. Therefore, the obligation of the 2nd Defendant to repay the Debt may not arise. 57.In short, the Conditional Agreement Defence provides a triable issue or an arguable defence to the Breach of Agreement Claim, in favour of the 2ndDefendant, for breach of Clauses 2(b) and 2(c) in failing to repay the Debt. E4. Equitable Mortgage Contention and Contractual Lien Defence 58.The Equitable Mortgage Contention and the Contractual Lien Defence are closely connected. The Equitable Mortgage Contention is both a defence to the Breach of Agreement Claim, in favour of the 2nd Defendant for breach of Clause 3, and the basis in support of the Counterclaim for Title Deeds. On the other hand, the Contractual Lien Defence is relied upon by the Plaintiff as a defence to the Counterclaim for Title Deeds. 59.The matters set out in paragraphs 60 to 62 below are not in dispute. 60.The Property is a property under the Home Ownership Schemeoperated by the Housing Authority. As such, the conveyance and alienationof the Property is subject to the provisions of the Housing Ordinance. Since the Director of Housing has not given prior approval, any mortgage or charge or other alienation of the Property, including any equitable mortgageor charge of the Property but excluding a contractual lien of the Title Deeds,shall be void by virtue of section 17B of the Housing Ordinance. 61.The Plaintiff arranged its solicitors, Messrs C L Chow & Macksion Chan to assist the 2ndDefendant in the discharge of the Existing Mortgage, and to collect and pass the Title Deeds to the Plaintiff (“Deposit of the Title Deeds”).[41] 62.The Existing Mortgage was discharged on 10 March 2017, which is evidenced by a land search.[42] 63.However, the following matters are hotly disputed by the parties:
64.According to the 2nd Defendant[43], in about late January or early February 2017, before she talked to the Plaintiff to ask for time for payment, Lam told her that she had already discussed with the Plaintiff and that they had come to an agreement that the Plaintiff would not press for payment if she was to mortgage the Property with the Plaintiff. 65.On the other hand, according to the Plaintiff[44], before it talked to the 2nd Defendant, its solicitors had advised it that as the Property fell under the Home Ownership Scheme operated by the Housing Authority, a charge or mortgage in favour of the Plaintiff without the consent of the Director of Housing would be void. The Plaintiff was advised that it might be more viable for the 2ndDefendant to guarantee that she would sell the Property and thereafter use the proceeds to pay the Debt. The Plaintiff also denies that there was any discussion with Lam about using the Property as a security.[45] 66.According to the 2ndDefendant, thereafter, the 2ndDefendant talked to Mr Wong Shek Bun (“Wong”), a director of the Plaintiff, on the phone. According to the 2ndDefendant, he was told by Wong to mortgage the Property to the Plaintiff and not to sell it at the moment (按係我度，唔會賣住).[46] Wong told the 2ndDefendant he would “refer his solicitors” to her to discharge the Existing Mortgage so that the Property could be mortgaged with the Plaintiff.[47] 67.On the other hand, according to the Plaintiff, Wong expressly told the 2ndDefendant on the phone that the usual mortgage could not be made but she could guarantee to ensure that the proceeds of the sale of the Property would be used to pay the Debt.[48] 68.The 2ndDefendant relies on her WhatsApp message of 3 February 2017 which referred to her conversation with Wong about mortgage of the Property. The Plaintiff seeks to explain it by saying that the 2ndDefendant’s use of the word “mortgage” was due to her being a lay person and being ignorant.[49] 69.On the other hand, the Plaintiff relies on the WhatsApp messages of its employee Ah Fung of 28 June 2017 and 3 July 2017 in which Ah Fung urged the 2ndDefendant to sell the Property to support its contention that the Plaintiff has only acquired a contractual lien by the Deposit of the Title Deeds without any power of sale.[50] 70.Consistent with its Contractual Lien Defence, the Plaintiff demanded the 2ndDefendant to sell the Property on her own and release the net sale proceeds pursuant to the Repayment Agreement in its very first demand letter dated 19 September 2017. However, according to the 2ndDefendant, the Plaintiff did not seek to enforce its power of sale as a mortgagee because it knows that the mortgage created by the Deposit of the Title Deeds is void and unenforceable.[51] 71.According to the Plaintiff, in order not to create any charge ormortgage in the Property, the Agreement and the Authorization were drafted to the effect that the 2ndDefendant, not the Plaintiff, would be the vendor when the Property is realized.[52] However, the 2ndDefendant questioned why the word “lien” does not appear in the Repayment Agreement or the Authorization at all if it was the intention of the Plaintiff to create a contractual lien.[53] 72.The Plaintiff also relies on the fact that the Agreement has notbeen registered in the Land Registry to support its contention that there is no intention to create a mortgage, charge or any interest against the Property apart from acquiring a contractual lien over the Title Deeds.[54] 73.Last but not least, inconsistent with the Equitable Mortgage Contention, in a letter dated 24 October 2017 from the 2ndDefendant’s own solicitors, it was stated that the 2ndDefendant had deposited the Title Deeds with the Plaintiff for the purpose of selling the Property. No assertion of mortgage or charge was made in that letter. The 2ndDefendant seeks to explain by saying that at the time “there was a confusion as to the arrangement of depositing the title deeds with the Plaintiff”.[55] 74.From the wealth of authorities referred to me by the parties, the following propositions may be deduced:
75.Arguably at least, the Agreement and the Authorization contain no charge or are silent on the point. Hence, whether the Deposit of the Title Deeds, the Agreement and the Authorization amount to an equitable mortgage or charge is fact-sensitive though the inference is in favour of an equitable charge rather than a lien. 76.The Defendants apparently disagree that the deposit of title deeds as security merely creates an inference in favour of an equitable charge of the land. They rely on the following proposition in paragraph 230.651 of Halsbury’s Laws of Hong Kong (2nd ed):
77.The above proposition is also contained in paragraph 280.007 of Halsbury’s Laws of Hong Kong. The footnote there contains the following helpful explanation on what “the lien created by the deposit of deeds” in that proposition in fact refers to:
78.Hence, it is quite clear that “the lien created by the deposit of deeds” contained in the proposition is not referring to the sort of contractuallien asserted by the Plaintiff but merely the implied right of the mortgagee under an equitable mortgage created by the deposit of title deeds to retain the title deeds. 79.Thus in Re Molton Finance Ltd, Lord Denning MR opined at paragraphs 332 – 333 that:
80.Equitable mortgage or charge by deposit of title deeds and contractual lien are in fact mutually exclusive: see paragraph 280.027 of Halsbury’s Laws of Hong Kong and paragraph 22.61 of Goode on Commercial Law (5th ed). The Court will have to make a finding of either one or the other, but not both. 81.The apparent absence of provisions in the Agreement and the Authorization enabling the Plaintiff to sell the Property also appears relevant.In Goode on Commercial Law cited by the Defendants themselves, it is stated at paragraph 22.20:
82.The Defendants further raised a slightly different point in support of the Equitable Mortgage Contention, namely, that if the debtor agrees to segregate a particular fund and to pay the debt out of that fund, then an “inference may be drawn, in the absence of any contra indication”[56]that it was the parties’ intention that the creditor should have a proprietary interest in the segregated fund. The Defendants submitted that this is exactly the situation of the Agreement and the Authorization. Clause 3 of the Repayment Agreement provides for a guarantee by the 2ndDefendant to sell the Property and use the proceeds to repay the Debt.[57] 83.However, in the present case, there is contra indication. It is the Plaintiff’s case that it wanted to avoid a charge or mortgage. 84.Moreover, the above quoted passage in Swiss Bank was considered in Pine Enterprises, where DHCJ To stated, at paragraph 151, that ultimately the real test is to ascertain the intention of the parties to see whether a charge is created. 85.As observed in Goode on Commercial Law:
86.Further, it is not entirely clear whether the Repayment Agreement, even coupled with the Authorization and the Deposit of the Title Deeds, does have the effect of segregating the proceeds of sale. Conclusion on E4 87.Despite the submissions from the Defendants, it remains quite clear that there are serious factual and legal issues to be determined under the 2ndDefendant’s Summons on the Counterclaim for Title Deeds. The 2ndDefendant’s Summons is not suitable for resolution under Order 14 of the RHC. 88.Despite the reference to Order 14A of the RHC in the 2ndDefendant’s Summons, no reliance on Order 14A of the RHC was placed by the 2ndDefendant in the course of submissions, whether written or oral. No question of law has been formulated by the 2ndDefendant for the Court’s determination pursuant to Order 14A of the RHC. Moreover, inthe present case, as there are conflicting allegations of fact, the Order 14A procedure is not appropriate: Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd and Another (2003) 6 HKCRAR 222. 89.It is clear that the outcome of the Counterclaim for Title Deeds would not affect the Breach of Agreement Claim. The security component and the repayment component (including any agreement to sell the Property for making repayment) are two separate components in the Repayment Agreement. Even if the Counterclaim for Title Deeds were upheld, avoidance of the security would not avoid the Defendants’ payment obligations under the Repayment Agreement: Yip Lau Yan Vinton v Tsang Wing Lam HCA 10967/1995 (unreported, 9 December 2010). 90.On the other hand, the Equitable Mortgage Contention, though insufficient in supporting summary judgment on the Counterclaim for Title Deeds, does provide a triable issue or an arguable defence to the Breach of Agreement Claim, in favour of the 2ndDefendant, for breach of Clause 3 in failing to sell the Property to repay the Debt. 91.The Contractual Lien Defence provides a triable issue or an arguable defence to the Counterclaim for Title Deeds, in favour of the Plaintiff. F. DISPOSITION 92.For the foregoing reasons, I make the following orders in respect of the Plaintiff’s Summons and the 2ndDefendant’s Summons:
93.Lastly, it remains for me to thank Counsel for their assistance.
Mr Robin D’Souza, instructed by C L Chow & Macksion Chan, for the plaintiff Mr Ross M Y Yuen, instructed by Chan, Lau & Wai, for the 1st and 2nd defendants [1] Para 4 of the Statement of Claim. [2] Paras 13 and 14 of the 2ndAffirmation of Wong Shek Bun, director of the Plaintiff. [3] Reproduced verbatim from para 6(2)(b) of the Plaintiff’s Reply. [4] Para 20 of the Affirmation of the 2ndDefendant. [5] Para 17 of the 2ndAffirmation of Wong Shek Bun. [6] Para 11 of the Plaintiff’s Skeleton. [7] The Plaintiff does not rely on breach of Clause 2 of the Repayment Agreement in support of its Breach of Agreement Claim against the 1stDefendant. See paras 24 and 27 of the Plaintiff’s Skeleton. [8] Paras 4 and 6(2) of the Statement of Claim, and paras 24 and 27 of the Plaintiff’s Skeleton. [9] Paras 6(1) and 6(3) of the Statement of Claim, and para 30 of the Plaintiff’s Skeleton. [10] Para 11(4) of the Defence to Counterclaim. [11] Para 11(6) of the Defence to Counterclaim, and para 7 of the 3rdAffirmation of Wong Shek Bun. [12] Para 3 of the Defence, and para 43 of the 1st and 2ndDefendants’ Skeleton Submissions. [13] Para 4 of the Defence, and para 33 of the Affirmation of the 2ndDefendant. [14] Para 8 of the Defence. [15] Para 13 of the Counterclaim of the 2nd Defendant. [16] Para 17 of the 1st and 2nd Defendants’ Skeleton Submissions. [17] Hong Kong Civil Procedure 2018, Volume 1, para 14/4/1. [18] Hong Kong Civil Procedure 2018, Volume 1, para 14/4/4. [19] Hong Kong Civil Procedure 2018, Volume 1, para 14/4/4. [20] Hong Kong Civil Procedure 2018, Volume 1, para 14/4/9. [21] Hong Kong Civil Procedure 2018, Volume 1, para 14/1/2. [22] Hong Kong Civil Procedure 2018, Volume 1, para 14/4/12. [23] Hong Kong Civil Procedure 2018, Volume 1, para 14/4/12. [24] Hong Kong Civil Procedure 2018, Volume 1, para 14/4/12. [25] See Hollywood Palace Co Ltd v Trans-Global Hong Kong Investment Ltd [2011] 1 HKLRD 833 at 838 – 839. [26] Paras 6, 7 and 12 of the 3rd Affirmation of the 2nd Defendant. [27] Paras 8 and 12 of the 3rd Affirmation of the 2nd Defendant. [28] Paras 8 and 9 of the Plaintiff’s Reply Points/Speaking Notes. [29] See the Defendants’ own evidence, para 8 of the Affirmation of the 2nd Defendant. [30] Para 5(7) of the Defence. [31] Para 33 of the Affirmation of the 2nd Defendant. [32] Hong Kong Civil Procedure 2018, Volume 1, para 14/4/4. [33] Interim payment is a more appropriate option to conditional leave to defend as the actual amount of the outstanding price is in dispute. [34] See para 14(2) above. [35] Para 33 of the Affirmation of the 2nd Defendant. [36] Chitty on Contracts, (32nd ed), para 3-025. [37] See Statoil, paras 91 and 105. [38] Chitty on Contracts (32nd ed), para 13-065. [39] Para 42 of the Plaintiff’s Skeleton. [40] Paras 44 and 45 of the Plaintiff’s Skeleton. [41] Para 17 of the 2nd Affirmation of Wong Shek Bun. [42] Para 20 of the Affirmation of the 2nd Defendant. [43] Paras 8 and 9 of the Affirmation of the 2nd Defendant. [44] Para 15 of the 2nd Affirmation of Wong Shek Bun. [45] Para 20 of the 2nd Affirmation of Wong Shek Bun. [46] Para 11 of the 3rd Affirmation of the 2nd Defendant. [47] Para 19 of the Affirmation of the 2nd Defendant. [48] Para 16 of the 2nd Affirmation of Wong Shek Bun. [49] Para 18 of the 2nd Affirmation of Wong Shek Bun. [50] Para 9 of the 3rd Affirmation of Wong Shek Bun. [51] Para 16 of the 1st and 2nd Defendants’ Skeleton Submissions. [52] Para 7 of the 3rd Affirmation of Wong Shek Bun. [53] Para 35 of the 1st and 2nd Defendants’ Skeleton Submissions. [54] Para 11 of the 3rd Affirmation of Wong Shek Bun. [55] Para 15 of the 3rd Affirmation of the 2nd Defendant. [56] Swiss Bank v Lloyds Bank [1982] AC 584, at 595F-G. [57] Para 34 of the 2nd Affirmation of the Plaintiff. [58] Counsel for the Defendants confirmed during the hearing that pre-judgment interest rate at prime plus 1% is not in dispute. | |||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under HCA 2429/2017