Oon Kim Koh, The Person Appointed To Represent the Estate of Koh Kim Chan, Deceased v. Quest Investments Ltd and Another

DCCJ 6960/2019

[2025] HKDC 1196

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 6960 OF 2019

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DECISION
(ON LEAVE TO APPEAL AND PAYMENT OUT)

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(I)  Introduction

1.After a 2-day trial, on 24 December 2024, I handed down my judgment[1] (“Judgment”) in favour of the Plaintiff. At paragraph 81 of the Judgment, I ordered:-

(1)  the 1^st Defendant do pay the Plaintiff the sum of SGD$395,896.43 or its equivalent in Hong Kong dollars;

(2)  the 1^st Defendant do pay the Plaintiff its pre-judgment interest on the said sum from 28 December 2013 up to the date of the Judgment, at the commercial borrowing rate of Australian Dollars in Australia; and

(3)  the 1^st Defendant do pay the Plaintiff its judgment interest on the said sum at judgment rate from the date of the Judgment until full payment.

2.On 28 March 2025, I handed down my decision[2], adopting the pre-judgment interest rates in Australian courts as the pre-judgment interest rates in this action.

3.Meanwhile, the parties took out the following applications:-

(1)  on 21 January 2025, the Plaintiff took out a summons pursuant to Order 22 rule 18(4) of the Rules of the District Court (Cap 336H, sub.leg.)(“RDC”) for an order that the sum of HK$624,240 paid into Court on 12 October 2022 as security for the 1^st Defendant’s costs together with any interest accrued thereon be paid out to the Plaintiff through her solicitors, Messrs Munros, forthwith (“Payment Out Application”).

(2)  On 21 January 2025, the 1^st Defendant took out a summons pursuant to sections 63 and 63A of the District Court Ordinance (Cap 336) (“DCO”) and Order 58 rule 2 RDC for leave to appeal against the Judgment to the Court of Appeal (“Leave to Appeal Application”), and for an order that there be a stay of the payment out of the sum in sub-paragraph (1) hereof pending the final determination of the 1^st Defendant’s intended appeal (“Stay of Payment Out Application”).

4.On 17 January 2025, HHJ Harold Leong ordered that the Payment Out Application be adjourned to be heard together with the Leave to Appeal Application.

5.Hence, the Leave to Appeal Application, the Stay of Payment Application and the Payment Out Application are dealt with together. Having considered parties’ written submissions, I have decided to determine all the applications on paper.

6.On 8 July 2025, Messrs Munros informed this Court that the 1^st Defendant had been wound up on 18 June 2025. Pursuant to section 186(1) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap.32), no action or proceeding shall be proceeded with or commenced against the company except by leave of the court when a winding up order has been made. The Plaintiff shall take steps to seek leave from the Court of First Instance to proceed with the Payment Out Application.

7.On 23 October 2025, Messrs Munros informed this Court that upon the joint application of the Plaintiff and the provisional joint and several liquidators of the 1^st Defendant, the Court of First Instance had granted leave to proceed with the Payment Out Application and the Leave to Appeal Application.

8.In this Decision, I adopt the same definitions and abbreviations used in the Judgment.

(II)  Legal Principles on Leave to Appeal

9.The following legal principles on leave to appeal cited by the Plaintiff are well-established, and they are not disputed by the 1^st Defendant.

10.Section 63A(2) of DCO lays down the test for granting leave to appeal from a judgment to the Court of Appeal, namely (a) the appeal has reasonable prospect of success; or (b) there is some other reason in the interest of justice why the appeal should be heard. A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which does not need to be shown to be “probable”.

11.In 秦錦釗 v 香港特別行政區 [2018] HKCA 167, Kwan JA (as she then was), giving judgment of the Court of Appeal, stated (at paragraph 8 thereof) that an appellant should pinpoint the errors of the judgment of the first instance judge and succinctly set out the reasons, and the appeal is not an occasion to regurgitate the same arguments which were rejected by the first instance judge.

(III)  Draft Grounds of Appeal

12.The Draft Grounds of Appeal appended to the Leave to Appeal Application contains seven paragraphs. In my view, the 1^st Defendant essentially raises three grounds of appeal.

(A)  Ground 1 – Draft Grounds of Appeal paragraphs 1 to 2

13.In a nutshell, Ground 1 is that this Court erred in preventing the 1^st Defendant from pursuing the Multiple Maturity Date Argument by holding that the Plaintiff had been completely taken by surprise by this new argument. Paragraphs 1 to 2 of the Draft Grounds of Appeal read:-

“1. In paragraph 59 of the Judgment, the Deputy Judge refers to [the 1^st Defendant]’s contention that time started to run for limitation purposes from the date upon which each instalment became due (“the “Multiple Maturity Date Argument”). The Deputy Judge then ruled (in paragraph 60) that [the 1^st Defendant] was not entitled to pursue the Multiple Maturity Date Argument because [the Plaintiff] was “completely taken by surprise” with this “new” argument. The Deputy Judge erred in making such a ruling since, besides the fact that the full basis of the Multiple Maturity Date Argument was confirmed in [the 1^st Defendant]’s written closing filed and served 15 days before the trial resumed, the argument concerned a matter of law fundamental to the case.

2. In such circumstances, while [the Plaintiff] contended throughout that the maturity date of the [Promissory Note] was 28 December 2013, the Deputy Judge was wrong to seek to prevent [the 1^st Defendant] from pursuing the Multiple Maturity Date Argument which, in brief, is as follows:

a) [the Plaintiff]’s contention that the maturity date of the [Promissory Note] was the date when the last instalment payment became payable is wrong at law.

b) A cause of action arises upon each default by a debtor in failing to make an instalment payment as it becomes due.

c) Time starts to run for limitation purposes from the date that the cause of action arises.”

14.In my view, Ground 1 has no merit.

15.First, in paragraph 60 of the Judgment, I took the view that the Multiple Maturity Date Argument caught the Plaintiff by surprise for the reason that neither the various dates of accrual of cause of action nor the corresponding limitation periods had been pleaded or raised in the written opening submissions or in the course of the trial. It is a pleading requirement to deal with each pleaded cause of action separately and individually, and to set out when the defendant says those causes of actions first accrued, and when the relevant limitation periods expired. See, for example, Hong Kong Civil Procedure 2025, Volume 1, rubric 18/8/26. The 1^st Defendant never disputed the said pleading requirement. Without any plea of the Multiple Maturity Date Argument clearly formulating the alleged dates of accrual of cause of action and the alleged corresponding limitation periods, the Plaintiff could not deal with this point or raise any point of law in response.

16.Secondly, as admitted by the 1^st Defendant, “the full basis” of the Multiple Maturity Date Argument was only set out in its written closing submissions filed and served 15 days before the date for oral closing submissions, and such practice was deplored by the Court of Appeal in Choi Yuk Ying v Ng Ngok Chuen [2019] HKCA 171, an authority cited by the Plaintiff but not disputed by the 1^st Defendant:-

“62.1 This brings me to the CT Appeal. Reading the oral final submissions, one can see arguments advanced as if litigation were a game, with references to the other side falling into “traps” laid in ambiguous pleadings setting out only basic facts, thereby leaving the pleader room to spring on the other side as many legal consequences as can be fashioned at trial (without setting them out).

62.2 This attitude should be discouraged. It has been said many times that “trial by ambush” has no place in modern litigation. “Trial by ambush” includes advancing new legal consequences in opening submissions (and in present case, oral additions to written opening submissions). This is unfair to the other side and also inconvenient for the court.

62.3 One of the purposes of having unambiguous pleadings is to let the court know the issues thrown up by the parties’ respective cases in as full an extent as possible. This not only assists in the listing of cases by providing an accurate estimate of the time required for the hearing. It is also essential for judges who now have to read extensively into the case before trial so as to reduce sitting time and hence save parties’ costs. In the present case, if the judge had allowed the amendment, NC’s team would have had to consider possible defences to constructive trust, take instructions and possibly call evidence on e.g. issue of unconscionability. In my view, she was clearly right to reject the application.” [emphasis added]

17.The fact that limitation was the only positive defence pleaded by the 1^st Defendant, albeit with no particulars at all (see paragraph 12 of the Judgment), and is thus contended by the 1^st Defendant as an argument concerning “a matter of law fundamental to the case”, is no exception to the pleading requirement. The unpleaded Multiple Maturity Date Argument was clearly a recently thought up issue during the course of the trial, and the Court of Final Appeal has clearly indicated that such an issue is not allowed. See Sinoearn International Ltd v Hyundai-CCECC Joint Venture (2013) 16 HKCFAR 632, at paragraph 30.

18.In paragraph 2 of its skeleton submissions dated 21 January 2025, the 1^st Defendant also referred to paragraph 50 of the Judgment which said that “there is nothing barring the 1^st Defendant from arguing the limitation defence”. Whilst not expressly spelt out, I take it as the 1^st Defendant’s argument that this Court was inconsistent in ruling that the Multiple Maturity Date Argument could not be run at paragraph 60 of the Judgment. In fact, the quote from paragraph 50 of the Judgment was taken out of context:-

(1)  In paragraphs 44 and 45 of the Judgment, I first ruled that due to the bare denials in the 1^st Defendant’s Defence, each and every fact pleaded in paragraphs 4 to 7 of the Statement of Claim is deemed admitted by the 1^st Defendant. The deemed admitted facts included the last date of payment under the Promissory Note being 28 December 2013, the 1^st Defendant’s payment of AUD113,300.00 in instalments of different sums on various dates, and the 1^st Defendant’s failure to pay the balance due under the Promissory Note.

(2)  In paragraph 50 of the Judgment, I ruled that the limitation defence in paragraph 8 of the 1^st Defendant’s Defence did not deal with the alleged facts in paragraphs 4 to 7 of the Amended Statement of Claim, and therefore did not premise on the determination of the said alleged facts.

(3)  It was in such circumstance that I stated that ‘there is nothing barring the 1^st Defendant from arguing the limitation defence with the facts in paragraphs 4 to 7 of the Amended Statement of Claim admitted”. To put it another way, the 1^st Defendant could still argue its limitation defence as pleaded in paragraph 8 of its Defence based on the facts as pleaded and deemed admitted in paragraphs 4 to 7 of the Amended Statement of Claim. Paragraph 50 of the Judgment did not deal with the Multiple Maturity Date Argument.

19.For Ground 1, the 1^st Defendant did not pinpoint any error in the Judgment which warrants the intervention by the Court of Appeal.

(B)  Ground 2 – Draft Grounds of Appeal paragraphs 3 to 5

20.In essence, Ground 2 is that this Court erred in finding that the maturity date of the Promissory Note was 28 December 2013 and the relevant limitation period expired on 28 December 2019, and I should have ruled in favour of the Multiple Maturity Date Argument and held that the claims for all instalments except the last instalment of SGD21,000 payable on 28 December 2013 were time-barred. Paragraphs 3 to 5 of the Draft Grounds of Appeal read:-

“3. Having given his ruling, the Deputy Judge made various comments (in paragraphs 64 and 65) stating that in any event the Multiple Maturity Date Argument “would not have assisted the 1^st Defendant”.

4. At the trial, in support of the Multiple Maturity Date Argument, [the 1^st Defendant] relied on six authorities in support of its contention that, in respect of an agreement repay a loan by instalments, the limitation period starts to run from the date upon which each instalment becomes due. However, the Deputy Judge erred in dismissing five of those authorities out of hand saying that they “do not concern the ascertainment of the maturity date of a promissory note” (paragraph 65). The Deputy Judge failed to explain why, in the absence of authority directly applicable to promissory notes, it was not relevant or desirable to consider decided contract cases relating to the time when a cause of action arises under loan agreements repayable by instalments. As for the sixth authority, the Deputy Judge was wrong in saying that Irving & Anor. v Veitch (1837) 3 M&W 90 is “clearly distinguishable”, without considering the possible relevance to this case.

5. After considering [the 1^st Defendant]’s Multiple Maturity Date Argument, the Deputy Judge confirmed his ruling (in paragraph 66) that the maturity date of the [Promissory Note] was 28 December 2013 which, the Deputy Judge said, “is sufficient to dismiss the limitation defence”. This is wrong as a matter of law.”

21.I reached the conclusion that the maturity date of the Promissory Note was 28 December 2013 and the relevant limitation period ended on 28 December 2019 in paragraphs 61 to 66 of the Judgment. Contrary to the 1^st Defendant’s contention of the absence of authority directly applicable to promissory notes, I applied the extract of Chalmers and Guest and Bills of Exchange, Cheques and Promissory Notes (in paragraph 61 of the Judgment) cited by the Plaintiff, which stated the general rule to be that the liability to the holder of the maker of a promissory note payable at a fixed or determinable future time arises on the maturity of the instrument, and thus if a promissory note is payable on a fixed date, time will begin to run in favour of the maker against the holder from the date on which the promissory note falls due. The 1^st Defendant never disputed with the said extract, whether at trial or during this Leave to Appeal Application.

22.The Promissory Note clearly provided that the last day of payment was 28 December 2013, and this fact was also deemed admitted by the 1^st Defendant. According to the general rule in the said extract, the Promissory Note was payable on the fixed date of 28 December 2013, which was the maturity date when the Promissory Note fell due and time began to run (see paragraph 62 of the Judgment).

23.Moreover, the Multiple Maturity Date Argument was inconsistent with the 1^st Defendant’s own stance and conduct. At paragraph 63 of the Judgment, I relied on YCA’s Confirmation 5.9.2012 and YCA’s Confirmation 12.8.2013, both of which specified that the outstanding balance owed by the 1^st Defendant to Mr Koh was “unsecured, bear 2.5% pa interest due on 28 December 2013”. I rejected the 1^st Defendant’s argument that the two confirmations were not written by or at the instruction of the 1^st Defendant, and I further accepted that they were signed by Mr Koh confirming the outstanding balance owed by the 1^st Defendant to him. In other words, according to the 1^st Defendant, the Sum fell due on 28 December 2013. The 1^st Defendant does not dispute with these findings.

24.At paragraph 64 of the Judgment, I came to the view that the Multiple Maturity Date Argument would not have assisted the 1^st Defendant in any event. I commented that nothing in the Promissory Note suggested that each instalment had its own maturity date or that the failure to settle one instalment would entitle Mr Koh to sue for that instalment. I further commented that it is against commercial reality and common sense to suggest that there were 25 maturity dates, and that parties did not dispute that the Promissory Note contained no acceleration clause. The 1^st Defendant does not dispute with these comments.

25.Further, and again contrary to the 1^st Defendant’s contention, as stated in paragraph 65 of the Judgment I had considered the six authorities cited by the 1^st Defendant. I came to the view that the first five authorities did not concern the ascertainment of the maturity date of a promissory note, and the sixth authority was clearly distinguishable from the present case. At trial, the 1^st Defendant failed to demonstrate how each of the cited authorities could be relevant to the determination of the maturity date of the Promissory Note in the present case or a promissory note in general. Each case depends on the particular terms of the contract in question and the particular circumstances:-

(1)  In Kallinicos & Anor v Hunt & Ors [2008] NSWSC 149, clause 14 of the Heads of Agreement expressly provided that in the event that payment is not made within 3 business days of the due date, the plaintiffs may enter judgment for the whole sum or such balance is at that time outstanding.

(2)  In Equuscorp Pty Ltd v Rigert [2003] VSC 343, the Loan Contract expressly provided at (i) clause 2.1(b) that the Debtor agrees to pay to the Credit Provider all other sums of money that from time to time fall due under the terms therein, (ii) clause 3.1(a) that the Debtor shall be in default upon failure to make payment of any amount due under the Loan Contract or the Mortgage, and (iii) clause 5 that if the Debtor defaults in payment on any amount payable when due, the Debtor shall pay on demand a default charge calculated by applying the daily percentage rate (being the annual percentage rate divided by 365) to the daily balance of the amount due and unpaid.

(3)  Wittersheim v The Countess Dowager of Carlisle (1791) 126 ER 360 involved several bills of exchange each having a definite date of repayment.

(4)  In Reeves v Butcher [1991] 2 QB 509, there was an agreement that the defendant would duly and regularly pay interest on the loan from the date of the agreement by equal quarterly payments, and the plaintiff thereby agreed not to call in the principal sum or any part thereof during the term of five years from the date of agreement, if the defendant should duly and regularly pay the said interest, provided that in case the defendant should make default in payment of any quarterly payment of interest for the period of 21 days next after the same should become payable, it should be lawful for the plaintiff immediately upon the expiration of such 21 days to call in and demand payment of the said principal sum and all interest then owing or accruing.

(5)  Irving v Anor v Veitch (1837) 3 M&W 90 concerned the failure to pay an annual instalment, being part of the consideration of a new, settlement agreement struck as a result of the defendant’s overdue promissory note. In light of the background for the formation of the settlement agreement, failure of payment of one annual instalment entitled the plaintiffs to sue on the promissory note.

26.Neither has the 1^st Defendant made good its point at all with any argument or authority in this Leave to Appeal Application. Applying秦錦釗 (supra), this is not the occasion for the 1^st Defendant to regurgitate the same arguments which were rejected by this Court.

27.Therefore, in the Judgment, I considered the merit of the Multiple Maturity Date Argument despite my earlier ruling that the 1^st Defendant was not allowed to run the same due to lack of proper plea. Based on my finding of 28 December 2013 as the maturity date and my rejection of the substance of the Multiple Maturity Date Argument, I held (in paragraph 66 of the Judgment) that it was sufficient to dismiss the limitation defence.

28.In the premises, Ground 2 has no merit.

(C)  Ground 3 – Draft Grounds of Appeal paragraphs 6 to 7

29.By Ground 3, the 1^st Defendant contends that this Court erred in accepting the Plaintiff’s second alternative position regarding the maturity date of the Promissory Note and the corresponding limitation period, in that there was insufficient evidence to show that the 1^st Defendant had made a payment of AUD20,000 under the Promissory Note. The 1^st Defendant also contends that this Court erred in deeming facts pleaded by the Plaintiff in the Amended Statement of Claim as admitted by reason of the 1^st Defendant’s bare denials in the Defence, such error having prejudiced the 1^st Defendant and put it at a severe disadvantage. Paragraphs 6 and 7 of the Draft Grounds of Appeal read:

“6. In considering the two alternative positions put forward by [the Plaintiff], the Deputy Judge noted that [the Plaintiff] had decided at trial not to pursue her first alternative position that, taking account of certain letters from [the 1^st Defendant]’s auditors, the limitation period ran from dates different from the alleged maturity date of 28 December 2013 (paragraph 67). However, as regards the second alternative position, the Deputy Judge held that, if he was wrong on the Plaintiff’s primary position that the maturity date of the [Promissory Note] was 28 December 2013, then the limitation period ran afresh from 17 June 2022, being the date upon which the sum of AUD20,000 “was paid by the 1^st Defendant to Mr. Koh”. The Deputy Judge erred in coming to such conclusion as regards this payment, particularly taking account of the following:

1) As stated in paragraph 35, at the trial “Madam Koh admitted that she had no knowledge of Mr. Koh’s businesses including his directorship in companies”.

2) As stated in paragraph 36, at the trial “Madam Koh testified that the payment of AUD20,000 from the 1^st Defendant on 17 June 2016 as stated in paragraph 4 of her witness statement was not the same payment pleaded in paragraph 4(c) of the Reply”.

3) There was insufficient evidence to show that the AUD20,000 payment was a payment made by [the 1^st Defendant] under the Note.

7. As stated in paragraph 47, [the Plaintiff] only raised her argument of the “bare denials” made in the Defence by [the 1^st Defendant] for the first time at the trial. At that stage, the Deputy Judge was wrong to treat those denials as admissions in respect of the items listed in paragraph 45, thereby prejudicing [the 1^st Defendant] and putting it at a severe disadvantage. By way of example, at the end of paragraph 45, the Deputy Judge made a ruling that [the 1^st Defendant] should not be allowed to cross-examine Madam Koh on the date of the delivery of the [Promissory Note], and the Deputy Judge refused to admit Madam Koh’s answer in that respect as evidence. Although, in response, [the 1^st Defendant] submitted that paragraph 6 of [the Plaintiff]’s Reply was a joinder of issue which meant that the allegations in the Statement of Claim were in issue and should be determined by the Court, the Deputy Judge rejected that submission. [The 1^st Defendant] considers that the Deputy Judge was wrong in doing so.”

30.First and foremost, I have to point out that the 1^st Defendant is wrong in alleging, at paragraph 6 of the Draft Grounds of Appeal, that this Court ruled that the limitation period ran afresh from 17 June 2022 if the ruling on the Plaintiff’s primary position was wrong. In fact, I held, at paragraph 68 of the Judgment, that if I was wrong on the Plaintiff’s primary position, the right of action had accrued on 17 June 2016, and the limitation period ran afresh on that date and expired 6 years therefrom on 17 June 2022. The 1^st Defendant acknowledged its mistake in paragraph 8 of its written submissions dated 6 June 2025.

31.By reason of the 1^st Defendant’s bare denial of paragraph 6 of the Amended Statement of Claim, the pleaded fact that AUD20,000.00 was paid by the 1^st Defendant to Mr Koh under the Promissory Note on 17 June 2016 was deemed admitted (paragraph 68 of the Judgment). Here, it is appropriate to deal with paragraph 7 of the Draft Grounds of Appeal, which is about the legal consequences of the 1^st Defendant’s bare denials in its Defence, first.

32.To begin with, paragraph 7 of the Draft Grounds of Appeal contains an inaccurate recount of the conduct of trial. Faced with the Plaintiff’s argument regarding the bare denials in the Defence, this Court permitted the 1^st Defendant to cross-examine Madam Koh, on de bene esse basis, on matters (including the date of delivery of the Promissory Note) which would be deemed admitted facts should the bare denials argument be accepted. It was only in the Judgment that I ruled on and accepted the Plaintiff’s argument that the facts pleaded in paragraphs 4 to 7 of the Amended Statement of Claim were deemed admitted because they were not specifically traversed, and held that the 1^st Defendant was not entitled to cross-examine Madam Koh on the date of delivery of the Promissory Note and refused to accept Madam Koh’s evidence in this regard. See paragraphs 43 to 53 of the Judgment. The contention that this Court treated the bare denials as admissions at trial, thereby prejudicing the 1^st Defendant and putting it at a severe disadvantage, is groundless.

33.The rest of paragraph 7 of the Draft Grounds of Appeal concerns my ruling on the legal effect of the bare denials and simply regurgitates the same arguments made at trial but rejected by this Court. See paragraphs 43 and 48 of the Judgment.

34.I return to paragraph 6 of the Draft Grounds of Appeal, which deals with the second alternative position and my conclusion on the 1^st Defendant’s payment of AUD20,000.00 under the Promissory Note to Mr Koh on 17 June 2016.

35.In paragraph 36 of the Judgment, I considered Madam Koh’s answer under cross-examination that the payment of AUD20,000 from the 1^st Defendant on 17 June 2016 stated in her witness statement was not the same payment pleaded as the second alternative position of the Plaintiff in the Reply. In fact, I made myself clear, in paragraphs 37 and 68 of the Judgment, that the fact of payment of AUD20,000 from the 1^st Defendant to Mr Koh under the Promissory Note on 17 June 2016 was deemed admitted by reason of the 1^st Defendant’s bare denial. I considered Madam Koh’s answer under cross-examination and expressed my acceptance of the said payment of AUD20,000.00 to reach my conclusion on the credibility and reliability of Madam Koh (paragraph 37 of the Judgment).

36.Even if I was wrong on the legal effects of bare denials, the 1^st Defendant’s present challenge of the finding of its payment of AUD20,000 to Mr Koh under the Promissory Note on 17 June 2016 has no merit for the following reasons.

37.First, in paragraph 36 of the Judgment, I accepted that Madam Koh might be confused about the question due to her advanced age because I had considered the evidence as a whole particularly the contemporaneous documents, namely bank statement, handwritten note dated 31 January 2012 and the Manuscript Record.

38.Secondly, in paragraph 37 of the Judgment, I accepted Madam Koh as a credible and reliable witness, and in particular the Plaintiff’s case of partial payments under the Promissory Note was supported by the handwritten note dated 31 January 2012 and the Manuscript record which in turn, was partly corroborated by the monthly bank statements.

39.Thirdly, for the sake of completeness, in paragraph 72 of the Judgment, I was satisfied that in any event the Plaintiff had proved partial payments made by the 1^st Defendant, including Item Nos 11, 13, 14, 15, 16 and 18 of paragraph 6 of the Amended Statement of Claim which were supported by the relevant monthly statements of the joint bank account of Mr Koh and Madam Koh, with entries marked “Deposit Quest Return loan”, “Deposit Quest Rtn loan”, etc with the handwritten word “Chiang”, and these payments were further supported by the Manuscript Record. In particular, the partial payment of AUD3,300.00 on 18 September 2013 (Item No 11 of paragraph 6 of the Amended Statement of Claim) lent support to the finding that the payment of AUD20,000 on 17 June 2016 was a partial payment under the Promissory Note, in that it was recorded in the statement covering 26 August 2013 to 26 September 2013 that “18 Sep, Deposit Quest return loan, 3,300.00 (Credit)” with the handwritten word “Chiang”, ie in the same manner as the payment of AUD20,000 made on 17 June 2016 was recorded. Both these two payments were included in the Manuscript Record as partial payments under the Promissory Note.

40.In Yu Pak Kan v Busy Firm Investment Limited [2023] HKCA 105, the Court of Appeal summarised (at paragraph 19) the well-settled principles concerning appeals against findings of fact made by a primary judge, including:-

(1)  The Court of Appeal can only intervene in a finding of fact by a primary judge where the finding is plainly wrong.

(2)  In an appeal, the Court of Appeal focuses on the question whether the primary judge has fallen into palpable errors which could give rise to grounds for intervention by the appellate court. It is not germane that the Court of Appeal may reach a different conclusion from that of the judge.

(3)  It is not helpful for counsel and litigants in person to merely repeat submissions already advanced and considered by the primary judge at the trial. The starting point should be the judgment of the primary judge and the identification of palpable errors. The mere assertion that the finding of the judge is against the weight of the evidence or that the judge should have reached another conclusion because of points advanced in the closing submissions below are not errors coming within that category.

(4)  Where a trial judge has reached a conclusion on the primary facts, the kind of mistake which could engage the appellate court’s power of intervention are: (1) where there was no evidence to support the conclusion, (ii) the conclusion was based on a misunderstanding of the evidence, or (iii) the conclusion was on which no reasonable judge could have reached.

41.Clearly, the finding of fact that a payment of AUD20,000 was made by the 1^st Defendant under the Promissory Note on 17 June 2016 does not fall within any palpable error which could give rise to grounds for intervention by the Court of Appeal. In addition, Madam Koh’s answer under cross-examination had been criticised by the 1^st Defendant in its closing submissions and this is not the occasion to repeat the same contention.

42.In the circumstances, even if I was wrong in rejecting the Multiple Maturity Date Argument in substance, by reason of the 1^st Defendant’s partial payment of AUD20,000 on 17 June 2016, the right to sue for each of the 25 instalments shall be deemed to be accrued on 17 June 2016 pursuant to section 23(3) of the Limitation Ordinance (Cap 347), and so none of the 25 instalments was time-barred when the Plaintiff commenced this action on 24 December 2019.

43.In the premises, Ground 3 has no merit.

(IV)  Conclusion and Costs on Leave to Appeal Application

44.The 1^st Defendant has failed to show any palpable errors in the Judgment which could give rise to intervention by the Court of Appeal. The intended appeal has no reasonable prospect of success, and there is no reason in the interest of justice why the intended appeal should be heard.

45.The Leave to Appeal Application is dismissed.

(V)  Plaintiff’s Payment Out Application and 1^st Defendant’s Stay of Payment Out Application

46.There is no dispute that the sum of HK$624,240 was paid into Court by the Plaintiff on 12 October 2022 as security for the 1^st Defendant’s costs because the Plaintiff resides outside the jurisdiction and has no asset within the jurisdiction.

47.According to the 5^th Affidavit of Mark Alexander Pierrepont filed on behalf of the 1^st Defendant on 16 January 2025, the said sum held in court should remain in court as security for costs pending the appeal until the 1^st Defendant’s application for leave to appeal has been determined.

48.As a result of the dismissal of the Leave to Appeal Application, there is no reason to continue holding the said sum in court. I allow the Plaintiff’s Payment Out Application and order in terms of paragraph 1 thereof. I dismiss the 1^st Defendant’s Stay of Payment Out Application.

(VI)  Costs

49.The Plaintiff asks for her costs be taxed on indemnity basis, relying on China Shanshui Cement Ltd & Ors v Tianrui (International) Holding Company Ltd & Ors [2021] HKCFI 2745, at paragraph 28. In that case, Keith Yeung J applied the legal principles on awarding indemnity costs set out in Commissioner of Inland Revenue v Poon Cho Ming John (2020) 23 HKCFAR 74. In relation to the second summons in question, the defendants filed extensive written submissions in relation to three out of five paragraphs of the summons. In their written submissions in reply, the defendants on one hand stated that they would no longer rely on a part of those three paragraphs of the summons, but on the other hand continued to make submissions on other parts of those three paragraphs. It was only at the beginning of the hearing and at the court’s invitation for clarifications that the defendants clearly and unequivocally abandoned those three paragraphs. The court agreed with the plaintiffs (at paragraph 28 thereof) that the pursuit of unarguable, weak or thin points, or points which are plainly wrong in law, can result in indemnity costs. The court held that the late abandonment, though saved some hearing time, had resulted in wastage of time, costs and resources, and in particular those incurred by the plaintiffs’ team in dealing with those paragraphs could have been saved and the distraction could have been spared. The court found that such late and equivocal abandonment constituted on the facts of that case special and unusual features which justified indemnity costs. On a broad brush approach, the court apportioned 35% in respect of the costs of and occasioned by those three abandoned paragraphs of the summons, so that the same be assessed on an indemnity basis.

50.In the present case, the 1^st Defendant’s Defence contained bare denials of essentially the entirety of the Plaintiff’s Amended Statement of Claim, with an unparticularised, one-liner “defence of limitation”, but without a single plea of the 1^st Defendant’s factual allegation or version of event. The drastic, negative legal consequences of the bare denials, as well as the requirement of particulars for a limitation defence, are based on fundamental principles of pleadings which the 1^st Defendant with legal representation must have, or at least should have, been aware of. By reason of the deemed admitted fact that the 1^st Defendant made a partial payment of AUD20,000.00 under the Promissory Note to Mr Koh on 17 June 2016, irrespective of whether the Plaintiff’s primary position of 28 December 2013 as maturity date or the 1^st Defendant’s Multiple Maturity Date Argument should prevail, time was deemed to have started to run afresh by operation of section 23(3) of the Limitation Ordinance, and the limitation period only expired on 17 June 2022, and the Plaintiff’s claim was brought well within time. Therefore, even if benefit were given to the unparticularised limitation defence or the unpleaded Multiple Maturity Date Argument, the limitation defence was hopeless and bound to fail as the Plaintiff’s reliance on section 23(3) of the Limitation Ordinance would prevail.

51.In this Leave to Appeal Application, the 1^st Defendant did not pinpoint any palpable error of the Judgment, particularly in relation to the findings and legal consequences of deemed admitted facts, and the conclusion on the Plaintiff’s second alternative position. The intended appeal is hopeless. Based on the principles set out in Commissioner of Inland Revenue v Poon Cho Ming John (supra) and China Shanshui Cement Ltd (supra), the Leave to Appeal Application warrants an award of costs on indemnity basis.

52.The Plaintiff’s Payment Out Application and the 1^st Defendant’s Stay of Payment Out Application were two sides of the same coin. To the 1^st Defendant, the intended appeal was the only basis in support of its Stay of Payment Out Application and in opposition to the Plaintiff’s Payment Out Application. Given my decision above that the intended appeal is hopeless and the Leave to Appeal Application is dismissed with an award of indemnity costs to the Plaintiff, it is appropriate to award the Plaintiff her costs of the Payment Out Application and Stay of Payment Out Application on an indemnity basis as well.

53.The 1^st Defendant has not made submissions on costs. Also, the Plaintiff has filed a Statement of Costs for Summary Assessment in respect of the Leave to Appeal Application dated 23 May 2025. It is unsure whether the said statement of costs has already covered the Plaintiff’s costs of its Payment Out Application and the 1^st Defendant’s Stay of Payment Out Application. In the circumstances, I make a costs order nisi that:-

(1)  The 1^st Defendant do pay the Plaintiff’s costs of the Leave to Appeal Application (ie paragraph 1 of the 1^st Defendant’s summons filed on 21 January 2025) on an indemnity basis, to be summarily assessed if not agreed, with certificate for counsel, to be paid within 14 days after assessment.

(2)  The 1^st Defendant do pay the Plaintiff’s costs of the Payment Out Application (ie the Plaintiff’s summons filed on 14 January 2025) on an indemnity basis, to be summarily assessed if not agreed, with certificate for counsel, to be paid within 14 days after assessment.

(3)  The 1^st Defendant do pay the Plaintiff’s costs of the Stay of Payment Out Application (ie paragraph 2 of the 1^st Defendant’s summons filed on 21 January 2025) on an indemnity basis, to be summarily assessed if not agreed, with certificate for counsel, to be paid within 14 days after assessment.

(4)  This order nisi shall become absolute in the absence of application to vary within 14 days.

(5)  Unless any application for variation of this order nisi is made within time:-

(a)  the Plaintiff shall lodge and serve its statement of costs for summary assessment in respect of the Payment Out Application (if any) and the Stay of Payment Out Application (if any) within 7 days after the expiry of the said 14-day period. If the Statement of Costs dated 23 May 2025 has already included costs in respect of the Payment Out Application and the Stay of Payment Out Application, the Plaintiff shall inform this Court and the 1^st Defendant in writing within 7 days after the expiry of the said 14-day period.

(b)  the 1^st Defendant shall lodge and serve its Statement of Objections against the Plaintiff’s Statement of Costs for Summary Assessment in respect of the Leave to Appeal Application dated 23 May 2025, as well as the Plaintiff’s Statement of Costs for Summary Assessment in respect of the Payment Out Application and/or the Stay of Payment Out Application (if any) within 7 days thereafter.

(c)  Summary assessment of the Plaintiff’s costs will be conducted on paper (no matter whether any Statement of Objection is lodged by the 1^st Defendant within time) thereafter.

Mr Lavesh Kirpalani, instructed by Munros, for the plaintiff

Mr Andrew Hart (Solicitor Advocate), of Hart Giles, for the 1^st defendant