Read the full judgment text of HCA 2320/2019 on BabelCite. This Court of First Instance judgment was delivered on 31 March 2023 before Deputy High Court Judge H. Au-Yeung.
Civil law – loan versus gift – family dispute between step-mother and step-son – whether USD8,680,000 paid by plaintiff to defendant for purchase of property in Brookville, New York was a loan repayable on demand or a wedding gift from plaintiff's husband (defendant's father, Mr Gao Jiaren) – Written Loan Agreement dated 19 December 2016 allegedly signed by defendant in plaintiff's presence – defendant's financial inability to repay nominal salary of about RMB30,000 per month with expenses paid by company owned by Father and plaintiff – inherent improbability of a 30-day repayable loan of USD8.68 million advanced without security to a person of no means – active participation of Father and plaintiff in house-hunting exercise and SP Agreement inconsistent with mere loan – impossibility that Written Loan Agreement was signed on 19 December 2016 because the contract number 'HRtoDG' referenced therein could not have existed before execution of the SP Agreement on 20 December 2016 – plaintiff fabricated evidence regarding creation of the contract number – contemporaneous list of expenses totalling USD8,685,915.64 inconsistent with the loan figure of USD8,650,000 – Written Loan Agreement prepared in English despite defendant's poor English – burden of proof on plaintiff to prove execution – assessment of credibility of witnesses – contemporaneous written documents of greatest importance – demeanour to be approached with care – plaintiff found not a credible witness – defence witnesses including the defendant, his wife Wang, and estate agent Joni found credible and truthful – authentication of documents under Order 27 rule 4 of RHC – authenticity denied in pleadings sufficient to displace deemed admission under rule 4(1) – late application to adduce new evidence (Ribeiro 2nd Affidavit from BVI Proceedings) refused for relevance, prejudice, and non-compliance with Order 41 rule 5 – adverse inference drawn against plaintiff for failure to call Father as witness despite alleging his mental fitness – plaintiff's explanation for non-calling Father rejected as unreasonable – application of omnia praesumuntur contra spoliatorem principle – plaintiff's claim dismissed with costs nisi – plaintiff to bear defendant's costs of the action including all costs reserved to be taxed if not agreed – costs order nisi to become absolute in 14 days if not varied.
Legal issues: Whether the sum transferred by the plaintiff to the defendant was a loan or a wedding gift · Whether the defendant is deemed to have admitted the authenticity of the Written Loan Agreement under Order 27 rule 4 of the RHC · Whether to admit Ribeiro 2nd Affidavit as new evidence at trial · Whether adverse inference should be drawn against plaintiff for failure to call Father as a witness
Outcome: Plaintiff's claim dismissed. The court found that the sum of USD8,680,000 transferred to the defendant was a wedding gift rather than a loan, and the plaintiff failed to prove execution of the Written Loan Agreement in the circumstances alleged.
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