Hua Xia Bank Co., Ltd Hong Kong Branch v. Gahood Holding Company Ltd and Others

HCMP 238/2024

[2025] HKCFI 1925

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 238 OF 2024

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DECISION

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A.  Introduction

1.Based on the terms of a mortgage dated 9 December 2022 (the “D2 Mortgage”), on 22 May 2024, a master (the “Master”) granted, inter alios, the following substantive reliefs against the 2^nd Defendant:-

(1)  The Plaintiff do recover against the 2^nd Defendant the sum of HK$379,764,105.54.

(2)  The 2^nd Defendant do pay the Plaintiff daily interest of (i) HK$77,433.08 from 20 March 2024 to 22 May 2024; and HK$88,275.40 from 23 May 2024 onwards until full payment.

(3)  The 2^nd Defendant do deliver vacant possession in respect of the mortgaged property known as Flat A with Flat Roof(s) (including swimming pool), 38^th Floor, Tower 1, the Avenue, No. 200 Queen’s Road East, Hong Kong (the “Avenue Property”).

2.By summons dated 4 November 2024, the 2^nd Defendant seeks:-

(1)  leave to appeal against the Master’s decision out of time; and

(2)  leave to adduce his affirmation dated 4 November 2024 as new evidence for the intended appeal.

3.Pursuant to the directions made by DHCJ K C Chan on 19 December 2024, the aforesaid applications are to be heard together with the substantive appeal at the present hearing.

B.  Material Background

4.The Plaintiff is a bank.

5.The 1^st Defendant is a private company controlled by the 3^rd Defendant.

6.The 2^nd Defendant is the 3^rd Defendant’s son.

7.By a facility letter dated 10 November 2022 (the “Facility Letter”), the Plaintiff made available facility in favour of the 1^st Defendant to the extent of HK$364 million.

8.The Facility Letter provides that the facility shall be secured by (i) a property in Shun Tak Centre owned by the 1^st Defendant (the “Shun Tak Property”); (ii) the Avenue Property, which the 2^nd Defendant owned; and (iii) a personal guarantee from the 3^rd Defendant.

9.In the premises, the 2^nd Defendant executed the D2 Mortgage on 9 December 2022 whereby the Avenue Property was charged in favour of the Plaintiff to secure the indebtedness owed by the 1^st Defendant under the Facility Letter. Meanwhile, the 1^st Defendant also executed a mortgage in favour of the Plaintiff (the “D1 Mortgage”) in respect of the Shun Tak Property.

10.For present purposes, it is important to note that under clause 2.01 of the D2 Mortgage, the 2^nd Defendant covenanted to pay the sums owed by the 1^st Defendant on demand (the “Repayment Covenant”).

11.When D2 Mortgage was executed, the Avenue Property had been mortgaged in favour of (i) China Citic Bank International Ltd; and (ii) Easy Fortune Property Ltd.

12.In this connection, clause 1.3 of the Facility Letter expressly provides part of the facility (ie HK$48 million) was to be used to discharge the pre-existing mortgage loan that the 2^nd Defendant owed Easy Fortune Property Ltd.

13.It is not in dispute that:-

(1)  The facilities under the Facility Letter were advanced on 30 November 2022.

(2)  Despite the Plaintiff’s demands[1], the 1^st, 2^nd and 3^rd Defendants had failed to pay the indebtedness under the Facility Letter.

(3)  The outstanding principal indebtedness as of the date of demand (ie 2 February 2024) was HK$363,048,090.

14.In the premises, pursuant to the terms and provisions in the Facility Letter, the D2 Mortgage and the D1 Mortgage, the Plaintiff commenced proceedings against the 1^st, 2^nd and 3^rd Defendants under the originating summons herein dated 9 February 2024.

15.The 1^st, 2^nd and 3^rd Defendants were represented by Messrs Peter Cheung & Co, which filed a notice to act on 25 April 2024 and an acknowledgment of service on 9 May 2024.

16.On 17 May 2024, Messrs Peter Cheung & Co (“PCC”) took out a summons seeking (i) leave to file and serve affirmations in opposition; and (ii) directions for substantive argument.

17.Upon hearing counsel instructed by PCC, at the hearing on 22 May 2024, the learned Master dismissed the summons dated 17 May 2024 and entered judgment in favour of the Plaintiff as follows:-

(1)  The 1^st, 2^nd and 3^rd Defendants do pay HK$379,764,105.54 in favour of the Plaintiff pursuant to the terms of the D2 and D3 Mortgages together with interest: see paragraphs 1 to 3 of the order.

(2)  The 1^st Defendant do deliver vacant possession of the Shun Tak Property in favour of the Plaintiff: see paragraph 4 of the order.

(3)  The 2^nd Defendant do deliver vacant possession of the Avenue Property in favour of the Plaintiff: see paragraph 5 of the order.

(4)  The 1^st, 2^nd and 3^rd Defendants do pay the costs of the proceedings, summarily assessed at HK$37,000.

18.Having entered judgment against the 2^nd Defendant, on 29 August 2024 the Plaintiff obtained a charging order nisi against two car parking spaces owned by the 2^nd Defendant (the “Car Parking Spaces”).

19.On 4 November 2024, the 2^nd Defendant took out a summons seeking leave to (i) appeal against the Master’s decision on 22 May 2024 out of time; and (ii) adduce new evidence for the intended appeal.

C.  The 2^nd Defendant’s Case

C1.  The Substantive Defences

20.Mr Sik Chee Ching (for the 2^nd Defendant) submitted that as the Plaintiff did not require the 2^nd Defendant to execute a personal guarantee, the objective intention of the parties was such that the 2^nd Defendant would not assume personal liability in respect of the 1^st Defendant’s indebtedness under the Facility Letter. Thus, there was a mutual mistake on the part of the parties, and the D2 Mortgage should be rectified.

21.Mr Sik further suggested that as the 2^nd Defendant purportedly put forward his own assets and assumed personal liability for a company (ie the 1^st Defendant) that belonged to his father (ie the 3^rd Defendant) the transaction under the D2 Mortgage calls for explanation. He submitted that the 2^nd Defendant acted under undue influence.

C2.  Seeking Leave to Appeal Out of Time and Leave to Adduce Further Evidence

22.As regards the applications for leave to (i) appeal out of time; and (ii) adduce new evidence, it is the 2^nd Defendant’s case that he had never signed any retainer with PCC nor given instructions to PCC. According to the 2^nd Defendant, the 3^rd Defendant’s personal assistant, namely Mr Luke Au-Yeung, simply informed him that the 3^rd Defendant would deal with the matter, and he was told that PCC was engaged to deal with the proceedings.

23.The 2^nd Defendant said that he was merely a “collateral provider” and he was not aware that there was monetary liability on his part until he sought independent legal advice after the notice of intention to show cause in respect of the Car Parking Spaces was served on him on 17 September 2024.

D.  Application for adducing New Evidence

D1.  Legal Principles

24.Order 58 rule 1(5) provides that:-

“No further evidence (other than evidence as to matters which have occurred after the date on which the judgment, order or decision was given or made) may be received on the hearing of an appeal under this rule except on special grounds.”

25.As pointed out by DHCJ Queeny Au-Yeung (as she then was) in Bank of China (Hong Kong) Ltd v Certain Aim Ltd [2011] 1 HKC 135 at para 17:-

“…O58, r1(5) was introduced to curb the undesirable practice before the Civil Justice Reform when parties sought to adduce a further round(s) of evidence on appeal after an unfavourable decision from a Master. Rule1(5) aims at effecting a change of culture so that parties should prepare their application properly at the earliest possible opportunity and lay all cards of the table prior to the hearing before a Master.”

26.In the premises, if an appellant who appeals against a master’s decision seeks to adduce new evidence, he has to satisfy the court that the requirements set out in Ladd v Marshall are satisfied: see Hong Kong Civil Procedure 2025 (Vol.1) at para 58/1/3.

27.In particular, the appellant who seeks to adduce new evidence has to demonstrate that the new evidence could not have been obtained even if due diligence had been exercised. In this connection, in Bank of New York Mellon v Sun Jiangrong [2016] 1 HKC 137 at para 25-26, Poon JA (as he then was) stated:-

“25. In our view, when considering the first condition of the Ladd v Marshall test, the context in which the application for leave to adduce fresh evidence arose is crucial. For the degree of reasonable diligence which the court expects the defendant to have exercised in his effort to obtain the evidence in question must be assessed against the overall circumstances of the case. The court will take into account all relevant factors, such as the time available to the defendant to gather the evidence, the nature of the evidence, the difficulty encountered in obtaining the evidence, the effort that the defendant had used in gathering the evidence. (The list is of course not exhaustive.)

26. We do not think that merely because it is an appeal from a summary judgment or proceedings not amounting to a trial, the requirement of reasonable diligence will be automatically relaxed. It is only one of the factors that the court will bear in mind. If, for example, in an application for summary judgment where the defendant is time-pressed to obtain the evidence in support of his defence and was unable to do so because of the shortage of time, the appellate court might be more inclined to grant him the indulgence to adduce fresh evidence on appeal. (But even then, as Lord Bridge made it explicitly clear, that does not relieve him from his duty to use such diligence as is reasonable in the circumstances to put before the judge below all the evidence that he seeks to rely on, albeit in a summary form.) However, if the defendant has been given ample time to gather all the evidence in opposition but has unreasonably failed to do so, we doubt very much if an appellate court would be prepared to relax the reasonable diligence requirement on his application to adduce fresh evidence on appeal simply because it is an appeal from summary judgment.”

D2.  Deliberation

28.Whilst the 2^nd Defendant seeks to put the blame on his father (ie the 3^rd Defendant) and PCC, it is important not to lose sight that on the 2^nd Defendant’s own admission[2]:-

(1)  He was all along aware that the Plaintiff had commenced the proceedings herein and that the same was concerned with the outstanding indebtedness under the Facility Letter.

(2)  He was content that the 3^rd Defendant should deal with the matters relating to the present legal proceedings.

(3)  As of 30 April 2024, he was already aware that PCC had been engaged to deal with the legal proceedings on behalf of the 1^st and 3^rd Defendants.

29.According to the public information that the Plaintiff obtained from the internet, the 2^nd Defendant is a highly educated and sophisticated businessman. He was an executive director of a listed company. He was a substantial shareholder of various listed companies. He graduated from a university in Russia and was proficient in English, Russian, Putonghua and Cantonese. He was also involved in a charitable organization and a commerce association.

30.Litigation is a serious matter. Bearing in mind that the present proceedings would undoubtedly affect the 2^nd Defendant’s personal interest, it is hard to believe that the 2^nd Defendant, who is a highly educated person and sophisticated businessman, would leave the entirety of the matter to his father without paying any attention to the reliefs claimed by the Plaintiff. In my view, this is not credible.

31.In any event, on his own assertion[3], the 2^nd Defendant was content to entrust his father (ie the 3^rd Defendant) and/or his personal assistant (ie Mr Luke Au-Yeung) to handle the matters relating to the present proceedings, and the 3^rd Defendant and/or Mr Luke Au-Yeung then engaged PCC to contest the proceedings on behalf of all the Defendants.

32.In the circumstances, there is plainly no room for the 2^nd Defendant to complain that PCC acted on his behalf without authority. This was not the case. On the evidence, the 2^nd Defendant was content that the matters relating to these proceedings be handled by the 3^rd Defendant and/or Mr Luke Au-Yeung, who engaged PCC to contest the same. In this connection, it is noteworthy in his affirmation filed on 4 November 2024[4], the 2^nd Defendant even referred PCC as “[his] previous solicitors” and he admitted that PCC informed him that the purpose of the hearing on 22 May 2024 was for seeking time extension. I cannot see how the 2^nd Defendant can disown the conduct of PCC and pretend as if he had not been privy to the present proceedings at all.

33.For the above reasons, I am of the view:-

(1)  It was inexcusable for the 2^nd Defendant not to pay attention to the Plaintiff’s claims against him in these proceedings (including the claims for monetary reliefs based on the Repayment Covenant under the D2 Mortgage[5]).

(2)  It was inexcusable for the 2^nd Defendant not to provide instructions to PCC (or another solicitors’ firm) regarding the lines of defences that he now pursues.

(3)  In this connection, as early as February 2024, the 2^nd Defendant was already aware of the present proceedings[6]. His inaction during the 3-month period from February to May 2024 was plainly inexcusable.

34.I am not of the view that the 2^nd Defendant had exercised due diligence.

35.Accordingly, I refuse to grant leave for the 2^nd Defendant to file his affirmations dated 4 November 2024 and 15 April 2025 for the purpose of the substantive appeal.

E.  Application for adducing New Evidence

E1.  Legal Principles

36.In considering whether to grant leave to extend time for bringing an appeal, the court would consider (i) the lengthof the delay; (ii) the reasons for the delay; (iii) the merits of the proposed appeal; and (iv) the prejudice suffered by the other party: see Wanghai Development Ltd v Leung Yu Fung [2019] HKCFI 1628 at para 4 (per DHCJ MK Liu); Postwell Ltd v Cheng Kap Sang [2004] 2 HKLRD 355 at para 33 (per DHCJ Wong Yan Lung SC).

E2.  Length of Delay

37.The 2^nd Defendant should have taken out an appeal on or before 5 June 2024 (ie 14 days from the learned Master’s decision on 22 May 2024). However, he did not take out the present summons until 4 November 2024.

38.There was a delay of about 5 months. In my view, the delay was fairly substantial.

E3.  Reasons for Delay

39.As regards the reasons for the delay, as mentioned, it is the 2^nd Defendant’s case that he was only aware of the monetary claim against him after he sought legal advice in late September 2024 upon receiving the notice to show cause in respect of the Car Parking Spaces.

40.For the reasons explained in paragraphs 28 to 35 above:-

(1)  I am not convinced that the 2^nd Defendant would leave the legal proceedings to the 3^rd Defendant in its entirety without paying any attention to the reliefs sought by the Plaintiff.

(2)  In any event, I am of the view that an educated person in the 2^nd Defendant’s position (and any reasonable person who was responsible for his affairs) would have paid attention to a legal document that set out the claims against himself and would have studied the same in detail.

41.In the premises, I am not persuaded that the inaction on the part of the 2^nd Defendant was reasonable and/or excusable.

E4.  Merits

42.For the reasons elaborated in paragraphs 48 to 68 below, I am not of the view that the 2^nd Defendant has raised an arguable defence to the Plaintiff’s monetary claims in these proceedings based on the Repayment Covenant. Even if the 2^nd Defendant’s new evidence were admissible and were to be taken into account, his purported defences are anyhow doomed to failure.

E5.  Prejudice

43.The Plaintiff has already taken enforcement action that targets the Car Parking Spaces. In view of the economic downturn, I accept the Plaintiff’s submissions that the market value thereof has been plunging and will keep plunging in the foreseeable future. As such, the Plaintiff has suffered prejudice and will continue to suffer prejudice as a result of the 2^nd Defendant’s delay and/or inaction.

E6.  Sum Up

44.For all the above reasons, I refuse to grant leave for the 2^nd Defendant to bring an appeal out of time.

F.  The Substantive Appeal

45.It is trite that an appeal from a master to a judge in chambers is a de novo hearing, and the judge will deal with the matter in question as if it came before him or her for the first time: see Hong Kong Civil Procedure (2025) (Vol 1) at para 58/1/2.

46.For the reasons set out in section D above, the 2^nd Defendant’s application for adducing new evidence has no merits and should be dismissed. Thus, there is no basis on which the 2^nd Defendant may challenge the learned Master’s decision at the hearing on 22 May 2024.

47.In any event, for the following reasons, I am not of the view that the new evidence relied on by the 2^nd Defendant discloses an arguable defence to the Plaintiff’s monetary claims based on the Repayment Covenant.

F1.  Mutual Mistake and Rectification

48.The 2^nd Defendant alleges that the parties acted under a mutual mistake. He mainly relies on the following allegations:-

(1)  The Facility Letters did not envisage that the 2^nd Defendant would execute a personal guarantee.

(2)  The contents of the D2 Mortgage were not explained to him.

(3)  It appears that the Repayment Covenant was based on a standard template.

49.I am not persuaded by the 2^nd Defendant’s contentions.

50.The starting point is that a person of full age and capacity is normally bound by his signature to a document, and the law does not assist a person who carelessly puts his signature on a document: see Ming Shiu Chung & Others v Ming Shiu Sum & Others (2006) 9 HKCFAR 334 at paras 84 to 86.

51.There is no dispute that the 2^nd Defendant voluntarily signed the D2 Mortgage.

52.In this connection, it is important to note that the first two pages of the D2 Mortgage saliently contain an express warning (the “Express Warning”) that by signing the document, the 2^nd Defendant would take up monetary liability on a personal basis. The Express Warning was drafted in both English and Chinese, and the English version reads as follows:

“(1) By giving this Deed, the Mortgagor[7] may become liable…instead of or as well as the Borrower[8], for all sums of moneys, obligations and liabilities due, owing or incurred by the Borrower… to us[9], whether past, present or future, actual or contingent, whether now or may at any time hereafter be or become from time to time due, owing or incurred to us anywhere and in whatever currency, in whatever style or form and whether as principal or surety.

(2) The Mortgagor will charge or mortgage the property described in the Schedule to this Deed…to secure the Secured Indebtedness, which is defined in sub-clause (h) of Clause 1.01 of this Deed.”

53.Moreover, as evidenced by a Chinese letter dated 28 November 2022 (the “Chinese Letter”) signed by the 2^nd Defendant and Mr. Wong Ming Hung (“Mr Wong”) of Messrs Gallant (which represented the Plaintiff), the 2^nd Defendant was advised that by signing the D2 Mortgage, he took up the personal liability to repay all the indebtedness owed by the 1^st Defendant and his personal liability could be unlimited.

54.As mentioned, the 2^nd Defendant is a sophisticated businessman and highly educated person. I do not believe that the 2^nd Defendant would have signed the D2 Mortgage without reading the Express Warning and that the Express Warning (which was on the first two pages of the D2 Mortgage) would have escaped the 2^nd Defendant’s attention. I also do not believe that the 2^nd Defendant would fail to understand the advice from Mr Wong as evidenced by the Chinese Letter dated 28 November 2022.

55.I am of the view it is more likely than not that the 2^nd Defendant was fully aware that by signing the D2 Mortgage, he would be personally liable to pay the indebtedness owed by the 1^st Defendant under the Facility Letter.

56.More fundamentally, Mr Chester Kwan (for the Plaintiff) helpfully referred me to Chitty on Contracts (35^th Ed) at para 5-062. There, the learned authors pointed out that:

“The party seeking rectification must show that: (1) the parties had a common continuing intention, whether or not amounting to an agreement, in respect of a particular matter in the instrument to be rectified; (2) there was an outward expression of accord; and (3) the intention continued at the time of the execution of the instrument sought to be rectified; and (4) by mistake, the instrument did not reflect the common intention.”

57.I accept Mr Kwan’s submissions that there is no evidence showing:-

(1)  the Plaintiff intended that the 2^nd Defendant should not shoulder personal liabilities; and

(2)  “there was an outward expression of accord”.

58.In the premises, even putting the 2^nd Defendant’s case (which I do not accept) to the highest, the 2^nd Defendant merely subjectively intended that he would not take up the 1^st Defendant’s indebtedness on a personal basis. This does not support the defence of “mutual” mistake.

59.For completeness, the fact that the Facility Letter did not require the 2^nd Defendant to provide a personal guarantee would not avail the 2^nd Defendant’s case at all. In my view, this fact is, at best, equivocal. As pointed out by Mr Kwan, since the Mortgage contains the Repayment Covenant, there was no point to ask the 2^nd Defendant to provide a personal guarantee additionally. This would be wholly unnecessary. In this connection, Mr Kwan also pertinently pointed out that the position of the 3^rd Defendant was different from the position of the 2^nd Defendant. In particular, unlike the 2^nd Defendant, the 3^rd Defendant did not execute a mortgage that contained a personal covenant to repay the indebtedness owed by the 1^st Defendant. This was the reason why the 3^rd Defendant was required to provide a personal guarantee. Otherwise, he would be “off the hook”.

60.For all the above reasons, I reject the 2^nd Defendant’s defence based on alleged mutual mistake and rectification.

F2.  Undue Influence

61.In Wing Hang Bank v Liu Kam Ying [2002] 2 HKC 57 at para 17, Ma J (as he then was) pointed out that in determining whether there was undue influence , the key questions to be determined by the court are as follows:- (1) whether it has been proved that the transaction was affected by undue influence; (2) whether the third party was put on inquiry; and (3) whether the third party took reasonable steps to satisfy himself that there was no undue influence.

62.In Fubon Bank (Hong Kong) Ltd v Union Sharp Hong Kong Investment Ltd [2022] HKCFI 1509 at para 49, Wilson Chan J stated:-

“(1) One must first bear in mind the Court of Final Appeal’s observations in the leading authority of Li Sau Ying v Bank of China (2004) 7 HKCFAR 579. In Li Sau Ying, it was made clear that the court should not concentrate on any “artificial legal presumptions” of undue influence, which are “likely to detract from the real issue, namely, whether the evidence justifies a conclusion that the impugned transaction was procured by undue influence” (at §§28-30); cited in Re Leung Lai Hing Cindy, HCB 6777/2015 (unrep, 3/04/2017), §22.

(2) Moreover, the court is “not required to follow the principles derived from authorities, as though they were set formulas”. Rather, the law must be applied with a “large degree of common sense”: Bank of China (Hong Kong) Limited v Wong King Sing & Ors [2002] 1 HKLRD 358, per Mr Recorder Ma SC (as Ma CJ then was), §§34, 56.

(3) After all, “the defence of undue influence is ultimately a simple concept. It has all to do with informed consent. Once a court forms the view that consent was freely given with full knowledge of the consequences of entering into the relevant transaction, that is the end of the matter, however improvident the transaction may objectively appear”: Wong King Sing (ibid), §34, cited in Re Leung Lai Hing Cindy (supra), §22.

(4) ‘[T]he most critical element of the defence’ of undue influence would be satisfied where the subservient party is shown to have been ‘victimised’ by the dominant party, namely that she was the “victim of [his] treachery” or that she had been ‘forced, tricked or misled’ by him: Re Leung Lai Hing Cindy (supra), §26; DBS Bank (Hong Kong) Limited v Cheng Mei Ling, HCMP 1825/2016 (unrep, 21/09/2017), §52.

(5) The impugned transaction would be tainted by undue influence if it were procured ‘by an abuse by the allegedly dominant party of the trust and confidence reposed in him by the allegedly subservient party’: Li Sau Ying (supra), at §34.”

63.For the following reasons, I have no hesitation in rejecting the 2^nd Defendant’s defence based on alleged undue influence.

64.First of all, the 2^nd Defendant is not even able to explain how the 1^st and/or 3^rd Defendants exerted undue influence on him. Whilst the 2^nd Defendant has kept harping that he did not expect to take up personal liability, there is no objective evidence showing that the 3^rd Defendant and/or the representatives of the 1^st Defendant victimized him and/or tricked or misled him to sign the D2 Mortgage. It has not been suggested that there was any improper conduct on the part of the 1^st and/or 3^rd Defendants.

65.Second, as mentioned, the 2^nd Defendant is a highly educated businessman, who was involved in the management of a listed company as well as the affairs of various charitable and commerce associations. I am of the view that he was aware of the Express Warning on the first two pages on the D2 Mortgage, and I do not believe that he was manipulated by his father. In this connection, there is no substance in the 2^nd Defendant’s bare assertion that he merely worked under his father’s guidance. As an executive director, he owed duties and obligations to a listed company (ie Wisdom Wealth Resources Investment Holding Group Ltd) whose shares have been listed on the Main Board of the Hong Kong Stock Exchange. The picture painted by the 2^nd Defendant does not sit comfortably with his personal profile that is made available to the public.

66.Third, the transaction under the Facility Letter benefited the 2^nd Defendant, in that the terms expressly provided that part of the facility (ie HK$48 million) was to be used for paying the pre-existing mortgage loan in respect of the Avenue Property that was owed to Easy Fortune Property Ltd. In the circumstances, it made sense for the 2^nd Defendant to accept the Repayment Covenant in the D2 Mortgage. Whilst I am not of the view that the transaction was commercially inexplicable, there is no evidence showing that the Plaintiff knew about or ought to know about the improper conduct (if any) on the part of the 1^st and/or 3^rd Defendants.

67.Fourth, in this connection, as evidenced by the Chinese Letter, the 2^nd Defendant was advised (i) to instruct his own solicitors; (ii) that he would assume personal liability to pay the indebtedness owed by the 1^st Defendant which could be unlimited; and (iii) that he had a choice not to proceed with the transaction. In the circumstances, I am not of the view that the 2^nd Defendant could have been abused. I am of the view that the Plaintiff’s solicitors, namely Messrs Gallant, acted reasonably and properly. The Plaintiff was entitled to take the view that the 2^nd Defendant was fully aware of and agreeable to the transaction and that the transaction was not tainted with any irregularity and/or inexplicable circumstances.

F3.  Sum Up

68.In the premises, the purported defences relied on by the 2^nd Defendant have no merits at all. Had I allowed the 2^nd Defendant’s applications for leave to appeal out of time and to adduce the new evidence, I would have dismissed his substantive appeal anyhow.

G.  Conclusion and Disposition

69.For all the above reasons, I dismiss the 2^nd Defendant’s summons dated 4 November 2024 as well as his substantive appeal.

70.Costs should follow the event.

71.The Plaintiff is entitled to costs. Pursuant to clause 21.01(b) of the D2 Mortgage, costs should be assessed on an indemnity basis.

72.With a view to saving time, costs and judicial resources, I will conduct gross-sum assessment on paper. The Plaintiff should lodge its statement of costs within 7 days and the 2^nd Defendant should lodge its statement in opposition within 7 days thereafter.

73.I express my gratitude to Mr Sik Chee Ching and Mr Chester Kwan for their helpful assistance rendered to me.

Mr Chester Kwan, instructed by M/s Chiu & Co for the Plaintiff

Mr Sik Chee Ching, instructed by M/s O Tse & Co for the 2^nd Defendant