Yang Shubin v. Lai Kuk Wa
Read the full judgment text of DCCJ 5859/2020 on BabelCite. This District Court judgment was delivered on 16 July 2021.
1. This is the plaintiff’s application by summons dated 5 February 2021 for summary judgment on his claim as pleaded in the Statement of Claim and for judgment to be entered against the defendant for the sum of HK$1,650,000 with interests and costs (the “ Application ”).
Cites 2 cases
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DCCJ 5859/2020 [2021] HKDC 857 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 5859 OF 2020 -------------------- BETWEEN
--------------------- Before: Deputy District Judge Sara Tong in Chambers (open to the public) Date of Hearing: 6 July 2021 Date of Judgment: 16 July 2021 -------------------- JUDGMENT -------------------- A. INTRODUCTION 1.This is the plaintiff’s application by summons dated 5 February 2021 for summary judgment on his claim as pleaded in the Statement of Claim and for judgment to be entered against the defendant for the sum of HK$1,650,000 with interests and costs (the “Application”). 2.The defendant opposes the application and contends that the she should be granted unconditional leave to defend. B. THE PARTIES’ PLEADED CASES 3.In summary, the plaintiff’s case as pleaded in the Statement of Claim is as follows:-
4.The defendant’s pleaded defence can be summarised as follows:-
APPLICABLE LEGAL PRINCIPLES 5.The applicable principles for summary judgment applications are well-settled, and have been summarised by DHCJ Lisa Wong SC (as she then was) in the case of Lau Chun Kam v Lai Tak Shing (HCA 2126/2007, 9 December 2008) at paragraph 12:-
C. THE PARTIES’ AFFIRMATION EVIDENCE 6.It is trite that affidavit evidence should, where possible, be sworn by the person with the most direct knowledge of the matters deposed to. Solicitors should only give evidence on his/her client’s behalf in exceptional circumstances which should be justified; the court may require solicitors to explain why it is proper for them to make an affidavit on behalf of their client; and the fact that a party may be outside Hong Kong would rarely be a satisfactory explanation: see Hong Kong Civil Procedure 2021 Volume 1 paragraph 41/5/4. 7.Further, specifically in the context of summary judgment applications, unless there is some very good reason not to do so, affidavits should be made by the parties themselves rather than by their solicitors: Hong Kong Civil Procedure 2021 Volume 1 paragraph 14/2/5. 8.In support of the Application, the plaintiff’s solicitor Mr Tang Wing Lam David of Messrs Fung, Wong, Ng & Lam filed an affirmation on the plaintiff’s behalf. No affirmation evidence has been filed by the plaintiff himself. 9.No explanation has been provided in Mr Tang’s affirmation as to why the plaintiff has not himself filed any affirmation in support of the Application, despite that it is the plaintiff and not Mr Tang who has direct knowledge of the relevant events pertaining to the plaintiff’s claim. At the hearing, Mr Kaiser Leung (Counsel for the plaintiff) explained that because the plaintiff resides in the Mainland, the travel restrictions caused by the Covid-19 pandemic prevented him from coming to Hong Kong to swear an affirmation. This is clearly not a satisfactory explanation given that the plaintiff could have arranged for an affirmation to be notarised in the Mainland. Mr Leung further drew attention to the fact that the contents of Mr Tang’s affirmation contain largely the matters which have been pleaded in the Statement of Claim filed herein (which have been verified by a Statement of Truth signed by the plaintiff) or are otherwise objective facts which are not in dispute. 10.Mr Taylor Li (Counsel for the defendant) argued that as the plaintiff had not provided any good reason to explain why he had not provided a supporting affirmation himself, the Application is defective and should be dismissed on this ground alone. 11.Whereas it is unsatisfactory that the plaintiff had not himself provided an affirmation in support of the Application, I do not consider that this would render the Application defective as such. But the absence of a supporting affirmation from the plaintiff himself will be taken into account by the Court in assessing the weight of the evidence given by Mr Tang on his behalf. I also take into account the fact that the contents of Mr Tang’s affirmation are largely based on (i) the facts which have been pleaded in the Statement of Claim and verified by the plaintiff’s Statement of Truth, and (ii) documentary evidence exhibited thereto, including (inter alia) contemporaneous text messages between the plaintiff and the defendant in relation to the events in question, the existence and authenticity of which are not disputed by the defendant. 12.On the defendant’s part, she has filed an affirmation to oppose the Application. The plaintiff was given leave to file an affirmation in reply, but no such reply affirmation has been filed. D. UNDISPUTED FACTS 13.The following events and contemporaneous correspondence between the parties via text messages are not in dispute:-
14.I shall make references to these undisputed text messages in the analysis below. E. WHETHER THE DEFENDANT HAS SHOWN A BONA FIDE DEFENCE 15.In my view, the aforesaid contemporaneous text messages which undisputedly passed between the parties do establish at least a prima facie case that the plaintiff had, on the defendant’s request, advanced a personal loan of HK$2 million to the defendant on 10 January 2020 by way of the Cheque. 16.The burden is on the defendant to show that her evidence is capable of being believed and that on the basis of such evidence, there is a fair or reasonable probability of the defendant having a real or bona fide defence to the plaintiff’s claim. The defendant’s contention that the HK$2 million advanced by the plaintiff was a shareholders’ loan to Paramount 17.The defendant’s contention that the HK$2 million advanced to her by the plaintiff on 10 January 2020 was not a personal loan, but a shareholders’ loan from the plaintiff to Paramount to support its operations, is not supported by any contemporaneous evidence, and contradicts the undisputed contemporaneous text messages between the parties. 18.In the text message on 30 December 2019 from the defendant to the plaintiff, it was clearly stated that the defendant herself (not Paramount) was requesting a loan from the plaintiff in the sum of HK$5 million, which the defendant herself promised to repay immediately after the sale of her apartment. 19.In an attempt to explain this text message, the defendant alleged (at paragraph 21 of her Affirmation) that:-
20.However, the aforesaid explanation from the defendant simply does not accord with:-
21.There was not a single mention of any loan to Paramount in the contemporaneous text messages between the parties:-
22.Further, the Cheque of HK$2 million was made payable to the defendant herself (not Paramount), and was undisputedly paid into her own personal bank account and not that Paramount. 23.The defendant alleged (at paragraph 23 of her Affirmation) that:-
24.While the defendant further asserted (at paragraph 24 of her Affirmation) that the HK$2 million loan allegedly advanced by the plaintiff to Paramount was all used to pay for its expenses, no evidence whatsoever has been adduced by the defendant to support this assertion. In particular:
25.Further, it is the defendant’s evidence (at paragraph 13 her Affirmation) that the 3 shareholders of Paramount, namely, the plaintiff, the defendant and Mr Lu Jian Jiong held 30%, 40% and 30% of the shares in the company respectively. If the HK$2 million paid by the plaintiff to the defendant on 10 January 2020 was indeed the agreed contribution proportionate to the plaintiff’s shareholding as alleged by the defendant in paragraph 23 of her affirmation (referred to in paragraph 23 above), the defendant could have provided evidence of the respective contributions made by the defendant and Mr Lu proportionate to their respective shareholdings in Paramount, but no such evidence has been provided. 26.Therefore, on the evidence before the Court, I am of the view that the defendant has failed to show any credible or arguable case that that HK$2 million advanced by the plaintiff to the defendant on 10 January 2020 was a shareholders’ loan made by the plaintiff to Paramount. Rather, the undisputed evidence before the Court, including the contemporaneous text messages between the parties, clearly show that the sum was advanced by the plaintiff to the defendant as a personal loan. 27.Mr Li invited the Court to note that the plaintiff never replied to the defendant’s text message on 30 December 2019 requesting for the sum of HK$5 million, and that the Cheque issued to the defendant on 10 January 2020 was not HK$5 million, but HK$2 million. I do not consider that these contentions would assist the defendant’s case, as it is clear from the text messages (in particular the Defendant’s text message on 10 January 2020 sent with the photograph of the HK$2 million Cheque from the plaintiff) that:-
28.Insofar as the defendant is asserting that there were oral conversations between the parties which led to up to the issuance of the Cheque by the plaintiff on 10 January 2020, this is not supported by any objective evidence and is no more than a mere assertion. In fact, in answer to the plaintiff’s requests for further and better particulars of paragraph 4(c) of the Defence and Counterclaim, where the defendant was requested to state whether the defendant’s alleged request to the plaintiff to inject HK$5 million as shareholders’ loan to Paramount was made orally or in writing, and to provide particulars of such request, the defendant stated that the request was made in writing in the form of the defendant’s text message dated 30 December 2019 “together with oral conversations between the plaintiff the defendant at the time” but without provide any particulars as to such alleged “oral conversations”. 29.Mr Li further submitted that the text messages do not constitute a loan agreement and the plaintiff would have to rely on oral conversations between the parties to substantiate his case on the Alleged Loan. However, it is clear from the text messages that the defendant requested a personal loan from the plaintiff by her text messages on 30 December 2019 and 5 January 2020, and the plaintiff agreed to provide such loan by issuing the Cheque to the defendant on 10 January 2020. Mr Leung confirmed that the plaintiff is not relying on any oral conversations between the parties in support of the Alleged Loan, which is evident from the plaintiff’s pleaded case in his Statement of Claim. 30.Mr Li also submitted that the plaintiff has not pleaded a case that the debt was due or payable on demand.
The defendant’s contention that the payment of HK$350,000 was a loan to the plaintiff 31.The defendant contends, as part of his defence to the plaintiff’s claim, that there was never any partial repayment of HK$350,000 by him of the Alleged Loan in July 2020, but that he had advanced a loan of HK$350,000 to the plaintiff (by way of a cheque issued to the plaintiff’s daughter-in-law on or about 6 June) for paying the school fees of the plaintiff’s grandson. I note that the plaintiff has not provided any affirmation evidence in response to the defendant’s version of events as to the nature of this payment, as stated in the defendant’s affirmation. 32.Mr Leung submitted on behalf of the plaintiff that:-
33.I agree with Mr Leung’s submissions that the text messages between the defendant and the plaintiff’s wife do not indicate that there was any loan of HK$350,000 made by the defendant to the plaintiff on or about 6 June 2020 as alleged, nor did the defendant produce a copy of the cheque allegedly issued by the defendant to the plaintiff’s daughter-in-law in the sum of HK$350,000 to show that the sum was advanced in June 2020 (as opposed to July 2020 as alleged by the plaintiff). Insofar as the defendant contends that there were oral conversations between the parties which led to the agreement for such loan, this is not supported by any objective evidence before the Court. 34.In any event, even if there was no partial repayment of the Alleged Loan, I am of the view that this does not affect the plaintiff’s case for repayment of HK$1,650,000 under the Statement of Claim, nor does the defendant’s case on the nature of the payment of HK$350,000 go anywhere to support her case that no personal loan was made to her by the plaintiff on 10 January 2020. 35.Mr Li submitted that the nature of the payment of HK$350,000 is relevant to the existence of the Alleged Loan in that if the Alleged Loan existed, the plaintiff would have asked for repayment of such loan rather than request another loan of HK$350,000 from the defendant in June 2020 when he was in need of funds to pay for his grandson’s school fees. However, even leaving aside the fact that the alleged loan of HK$350,000 is not supported by any objective evidence before the Court, I do not see any inherent inconsistency between the existence of the Alleged Loan and the plaintiff’s alleged request for a separate loan of HK$350,000. F. CONCLUSION 36.For the above reasons, I am of the view that the defendant has failed to show a real or bona fide defence or any other reason why the plaintiff’s claim should proceed to trial. 37.I therefore grant the following orders:-
Mr Kaiser Leung, instructed by Fung Wong Ng & Lam LLP, for the plaintiff Mr Taylor L K Li, instructed by JCC Cheung & Co, for the defendant [1] The defendant’s counsel confirmed during the hearing that the reference to “2020” is a typographical error and should be “2019” instead. | |||||||||||||
Cases cited in this judgment