Southwest Securities (HK) Brokerage Ltd v. Nieumarkt Investments Ltd and Another
Read the full judgment text of CACV 250/2020 on BabelCite. This Court of Appeal judgment was delivered on 14 May 2021 before Kwan VP, Cheung JA, Au JA.
Civil law – loan facility – summary judgment – Facility Agreement and Amended Facility Agreement – term loan of HK$251,000,000 to acquire shares in Celebrate International – mortgage over 991,689,459 shares – defendants' default in repayment of HK$163,512,038.71 by 16 April 2019 – defence of alleged Collateral Agreement based on oral representations by Mr Luo – counterclaim for specific performance and repayments – whether the Collateral Agreement was reasonably capable of belief – whether its terms were sufficiently certain to constitute a contract – whether summary judgment should be granted – whether the plaintiff's claim is for a liquidated debt or unliquidated damages – classification of guarantor's liability under the four-class framework – whether a secured creditor's possession of security requires assessment of damages – whether contractual default interest at 30% per annum compounded annually is recoverable – defendants absent at appeal hearing – appeal dismissed – cross-appeal allowed – final judgment for plaintiff in sum claimed with contractual default interest – counterclaim dismissed – costs of appeal to plaintiff with certificate for two counsel.
Legal issues: Whether the Collateral Agreement defence was reasonably capable of belief · Whether the Collateral Agreement terms were too vague to constitute a contract · Whether the plaintiff's claim is for a debt or unliquidated damages · Whether damages should be assessed due to possible realisation of security · Whether contractual default interest at 30% per annum compounded is recoverable
Outcome: Defendants' appeal dismissed; plaintiff's cross-appeal allowed. Final judgment entered for the plaintiff against the 1st and 2nd defendants in the sum of HK$163,512,038.71, with contractual default interest, and the defendants' counterclaim dismissed.
Cited by 5 cases · Cites 2 cases
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CACV 250/2020 [2021] HKCA 740 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 250 OF 2020 (ON APPEAL FROM HCA NO. 1200 OF 2019) ________________________
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________________________ REASONS FOR JUDGMENT ________________________ Hon Cheung JA (giving the Reasons for Judgment of the Court) : I. The appeal and cross-appeal 1.The plaintiff applied for summary judgment against the 1st and 2nd defendants for HK$163,512,038.71 together with interest and costs. The 1st and 2nd defendants denied that they were liable and raised a counterclaim against the plaintiff based on a collateral agreement between the parties. Deputy High Court Judge Whitehead SC gave final judgment for the plaintiff against the 1st and 2nd defendants with damages to be assessed. He dismissed the counterclaim of the 1st and 2nd defendants. The 1st and 2nd defendants appealed. The plaintiff also cross‑appealed by way of a respondent’s notice, seeking final judgment as claimed. The 1st and 2nd defendants were absent at the hearing of the appeal. We dismissed their appeal and allowed the plaintiff’s cross‑appeal. I now give reasons for our judgment. II. The plaintiff’s case 2.1The plaintiff’s claim is a simple one. On 24 November 2017, the plaintiff as lender, 1st defendant as borrower and 2nd defendant as guarantor entered into the Facility Agreement in writing, under which the plaintiff agreed to make available to the 1st defendant a term loan of HK$251,000,000. The 2nd defendant is the sole director and shareholder of the 1st defendant. 2.2The 1st defendant obtained the loan facility in order to acquire shares in Celebrate International, a company listed on the GEM Board by way of mandatory general offer. 2.3On about 24 November 2017, as security for the loan under the Facility Agreement, the 1st defendant as mortgagor executed in favour of the plaintiff a mortgage over 991,689,459 shares in Celebrate International (‘the shares’). A further personal guarantee was provided by the 3rd defendant but he is not involved in this application. 2.4On 12 February 2019, the parties entered into an Amended Facility Agreement to amend certain terms of the Facility Agreement including how the loan is to be made available to the 1st defendant and repayment of the loans. The 1st defendant was required to repay the outstanding sums by 16 April 2019. 2.5As of 16 April 2019, the 1st defendant failed to repay the outstanding sums drawn down by it under the Amended Facility Agreement in total of HK$163,512,038.71. By letters dated 25 April 2019, the plaintiff through its former solicitors demanded repayment from the 1st and 2nd defendants. They have failed and refused to pay the outstanding sums. III. The defence 3.1 The 1st and 2nd defendants contended that the real intention of the plaintiff at the time when it entered into the Facility Agreement (as amended) with them was to use the 1st defendant as its nominee, agent and/or proxy in completing the acquisition of Celebrate International’s 59% total issued shares (‘Controlling Shares’) and the general offer, so that the shares would become beneficially owned by the plaintiff in the event that the 1st and 2nd defendants defaulted in interest payments and repayment of the facility, which was bound to happen given their financial inability. 3.2The 1st and 2nd defendants contended that a collateral agreement existed between the parties in the following manner. After a meeting concerning the proposed funding on 8 September 2017, the 2nd defendant had a telephone conversation with Mr Luo for and on behalf of the plaintiff during which : 1) Mr Luo urged the 2nd defendant to take out a loan facility from the plaintiff to acquire the Controlling Shares; 2) Mr Luo represented to the 2nd defendant that the value of the listing status of Celebrate International itself was worth more than the loan amount to be granted. Therefore, by acquiring the Controlling Shares, it was a transaction with no down‑side. If the 2nd defendant could have found a buyer for the Controlling Shares, he would be able to earn a quick and substantial profit from the transaction; 3) In order to lure the 2nd defendant, Mr Luo agreed to sweeten the deal by lowering the interest rate under the facility to 13% per annum (from 15-16% per annum as proposed by Mr Luo in the meeting on 8 September 2017); and 4) It was also expressly represented to the 2nd defendant that, despite the terms of the Facility Agreement (as amended) and other ancillary security agreements including the Guarantee, the 2nd defendant would not be held liable and accountable for the money owed therein. It was expressly promised by Mr Luo to the 2nd defendant that, in the worst case scenario, the shares would be sold and the value of which was more than sufficient to cover any personal indebtedness owed to the plaintiff (‘the Collateral Agreement’). 3.3The 1st and 2nd defendants contended that it was only because of the representations and promises made by Mr Lou that they entered into the loan facility. By commencing these proceedings against them, the plaintiff was in breach of the Collateral Agreement. As such, they further sought a declaration that the Collateral Agreement be specifically performed, and a counterclaim for payments or repayments that were made by them pursuant to the Facility Agreements. IV. The decision 4.The Judge found that the defendants’ case on the Collateral Agreement was not credible. He dismissed their counterclaim. However, instead of entering judgment for the plaintiff as claimed, he ordered judgment to be given to the plaintiff with damages to be assessed because he held that the 1st defendant is the mortgagor of the shares and the plaintiff has now appointed receivers over these shares who ‘can or may realise the value of these shares, which would thus reduce the defendants’ liability to the plaintiff’. V. Our view 1) The appeal 5.1The 1st and 2nd defendants rely on two grounds of appeal. First, the Judge erred in summarily rejecting their case that the Collateral Agreement existed by finding that it ‘is not reasonably capable of belief’. Second, the Judge erred in holding that the terms under the Collateral Agreement are so vague and uncertainsuch that ‘there is insufficient certainty to found the existence of a contract’. 5.2The 1st and 2nd defendants did not appear at the appeal. Accordingly, their appeal was dismissed. The Judge obviously was correct in rejecting their defence and had given proper reasons for so doing. 2) The cross-appeal 5.3In respect of the cross-appeal, the only reason given by the Judge for damages to be assessed is because of the possible realisation of the value of the security held by the 1st defendant. Before I deal with the issue of security, it is important to identify the nature of the plaintiff’s claim. Is it a claim for damages or a claim for a debt? 5.4The claim against the 1st defendant as the borrower is for the outstanding debt under the Amended Facility Agreement. This is clearly a liquidated sum which does not need further assessment because it is a specific sum of money due and payable under or by virtue of a contract, the amount of which is capable of being ascertained as a mere matter of arithmetic, see Re Grande Holdings Ltd [2016] 1 HKLRD 535, at [6.5] and HKCP 2021, paragraph 6/2/4. 5.5In respect of the 2nd defendant as the guarantor, Clause 17.1 of the Facility Agreement provided that :
5.6Under Clause 1.1 :
5.7In McGuinness v. Norwich and Peterborough Building Society [2012] 2 BCLC 233, Patten LJ identified four classes of liability that may be imposed on a guarantor.
5.8Patten LJ held at [8] that the obligations in classes (2) and (4) create a liability in debt. On the other hand the obligations in classes (1) and (3) are enforceable by way of action for unliquidated damages. He explained in respect of classes (1) and (3),
5.9In the present case, whilst Clause 17.1(a) is a ‘see to it’ obligation, Clause 17.1(b) is clearly a conditional payment obligation. Clause 17.1(c) imposes a primary obligation on the 2nd defendant to indemnify the plaintiff if the obligation guaranteed by it is or becomes unenforceable, invalid or illegal. This is a concurrent liability and imposes a class (4) liability on the 2nd defendant as well. Hence Clauses 17(1)(a) and (c) create a liability in debt which does not require further assessment. See also Easy Mount Group Ltd v. Lam Ka Yuk James [2019] HKCA 890. 5.10In respect of the security held by the plaintiff, Lord Templeman in China and South Sea Bank v George Tan [1990] 1 AC 536 at 545 stated that a secured creditor is not under a duty to exercise his powers of sale over the mortgage securities at any particular time or at all. He explained :
5.11Although in China and South Sea Bank Limited Lord Templeman was dealing with a case of a surety, the principles he had enunciated covered the position of the borrower as well. If the issue of the value of the security is to be disregarded, then clearly there is no room for any assessment of damages. Further, in this case Clause 17.5 expressly provided that :
5.12Accordingly, the cross-appeal was allowed and judgment was entered for the plaintiff in the sum as claimed. 3) Interest 5.13The plaintiff claimed interest on the principal of HK$163,512,038.71 from 16 April 2019 until payment at the rate of 30% per annum, compounded on an annual basis. This is supported by Clause 9.3 of the Facility Agreement which provided that :
5.14We will order interest as claimed. 4) Costs 5.15The plaintiff is to have the costs of the appeal with certificate for two counsel. As the Judge had already awarded costs below to the plaintiff there is no need to make any order on the costs below.
Mr Law Man-Chung and Ms Kelly Shum, instructed by Ince & Co., for the Plaintiff The 1st Defendant, unrepresented The 2nd Defendant, unrepresented |
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