Industrial and Commercial Bank of China (Asia) Ltd. v. Wong Yin

CACV000793/2000

CACV 793/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 793 OF 2000

(ON APPEAL FROM HCMP 4728 OF 2000 &
HCA 7578 OF 1999 (CONSOLIDATED))

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Coram: Hon Rogers VP in Chambers

Date of Hearing: 27 November 2000

Date of Decision: 27 November 2000

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D E C I S I O N

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Hon Rogers VP :

1. This is an application for a stay of execution in respect of the judgment given by Deputy Judge Muttrie on 18 October 2000 after a hearing which took place between 9 & 11 October 2000. The order which the judge had made was, first of all, an order for payment of a sum of money of HK$17,363,050.54 with daily interest rate on various amounts, which it is unnecessary to set out; and secondly, that unless the defendant do pay to the plaintiff the judgment sum within 28 days from the date of service on him of the order, the defendant should deliver vacant possession of a flat in Parkview.

2. The case commenced with an originating summons in an action by the plaintiff in which the complaint in essence was that the defendant bank would not release a mortgage. The plaintiff's claim was that they had borrowed money to the tune of some HK$7.8 million and there had been a further overdraft facility which had been given on the strength of the mortgage. In March and April 1997 the plaintiff negotiated with another bank to take over the mortgage and borrow slightly more money on the property. When the plaintiff approached the defendant bank asking for the release of the mortgage, they were told that there was a further sum of US$9.1 million which had to be repaid. That was in respect of a loan which the bank had made to a Company called Jing Guang.

3. It is unnecessary to go into the pleadings in this action for the purposes of this application. I have to say, however, that the pleadings in the action might have been slightly differently drawn. But it has transpired that at the trial the plaintiff tried to give evidence based on one document that that loan to Jing Guang had been agreed to be extended from 29 April 1996 to 29 April 1997, and thus at the date when the plaintiff sought release of his mortgage from the bank, that loan was not payable and the guarantee under it, which the plaintiff had given, could not be called upon.

4. Since the trial, considerably more correspondence has emerged. The plaintiff says that he was ill in Hong Kong and unable to obtain that correspondence. The correspondence was between Jing Guang and the bank. On the face of it, it seems to me to show that the plaintiff is correct. The loan to Jing Guang was extended and indeed there seemed to have been a substantial payment in respect of the costs of that extension. On that footing, it seems to me that there may well have been an injustice caused. My provisional view is that there is a considerable amount to be said that that correspondence should have emerged on discovery and, indeed, that the bank had that correspondence. It seems to me that without deciding the issue, there is a lot to be said that that correspondence should have been disclosed.

5. On the question of the admission of the correspondence in evidence and whether it will actually constitute a valid ground upon which the plaintiff can eventually say that he should have obtained judgment, again I do not propose to comment at this stage. Mr Fung has argued that even if that correspondence were admitted and it were shown that the loan had been extended to 29 April 1997, still the plaintiff would fail. Apart from anything else, he said that there was no clog on the equity of redemption as claimed by the plaintiff and, secondly, that in any event the plaintiff had not tendered the full sum.

6. All these matters seem to me to be matters which should be gone into at the hearing of the appeal. It also seems to me, regrettably, that there is a possibility that the action might even have to be remitted back to the Court of First Instance if things take a certain course, but that is not a matter for me.

7. This appeal has been set down for hearing in March of next year and it does seem to me to be right that the status quo should be held until after the hearing of the appeal. I do not think that the plaintiff should be at peril of losing his residence and having that sold at this stage without the matter having been fully gone into. In those circumstances, I do think it is correct to grant the stay requested and I propose to do so. I will hear the parties on the terms of the order if there are any details which need to be dealt with.

Representation:

Mr Eugene Fung, instructed by Messrs Deacons, for the Plaintiff/Respondent

Mr Edward Chan, SC & Mr Timothy Cheung, instructed by Messrs K.M. Lai & Li, for the Defendant/Appellant