Kenwell Ltd v. Safety Gondola Ltd
Read the full judgment text of HCA 1494/2024 on BabelCite. This High Court CFI judgment was delivered on 9 December 2025.
1. This is the hearing of the Defendant’s appeal from the order of summary judgment granted by Master Michael Lok (“ the Master ”) on 28 July 2025 in favour of the Plaintiff for:-
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HCA 1494/2024 [2025] HKCFI 5894 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1494 OF 2024 ________________________
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____________________________________________ J U D G M E N T ____________________________________________ The application 1.This is the hearing of the Defendant’s appeal from the order of summary judgment granted by Master Michael Lok (“the Master”) on 28 July 2025 in favour of the Plaintiff for:-
2.The evidence filed on the summary judgment application prior to the hearing before the Master is:
3.The Defendant has filed a 2nd affirmation dated 11 September 2025 without leave. At the start of the hearing, Mr Chan for the Defendant submitted that he would not make an application to adduce this evidence, so that affirmation is excluded. 4.I have the advantage of a transcript of the reasons of the Master. Summary judgment: legal principles 5.The essential principles in respect of summary judgment pursuant to Order 14 of the Rules of the High Court, Cap 4A (“RHC”) are not disputed. 6.An appeal from a Master under RHC O. 58 is a rehearing and to be approached de novo: Hong Kong Civil Procedure 2025 at §58/1/2. 7.Once the plaintiff is able to show a prima facie case, the defendant bears the burden of showing that there are triable issues: see Ju Yan Di Emperory Genesisy v. Yau Wai Han [2015] 1 HKLRD 822 (at §14). 8.The defendant’s affidavit must condescend upon particulars and should, as far as possible, deal specifically with the plaintiff’s claim and affidavit, and state clearly and concisely what the defence is, and what facts are relied on to support it: Hong Kong Civil Procedure 2025 at §14/4/4. 9.The mere assertion in an affidavit of a given situation which is to be the basis of a defence does not, ipso facto, provide leave to defend; the court must look at the whole situation and ask itself whether the defendant has satisfied the court that there is a fair or reasonable probability of the defendant’s having a real or bona fide defence: Banque de Paris et des Pays-Bas (Suisse) SA v. Costa de Naray [1984] 1 Lloyd Rep. 21 at §28. 10.Although a court cannot resolve issues of fact on affidavits, there are some cases in which the defendant’s own case is so incredible or so contradicted by contemporary documents or circumstances that it becomes clear that his defence is a sham: Manciple Ltd. v. Chan On Man [1995] 3 HKC 459, at §466G. Undisputed Factual Background 11.It is undisputed, or indisputable, that:
The pleaded claim 12.The Plaintiff claims entitlement to possession of the Subject Lot as against the Defendant on the basis of the 2023 Tenancy Agreement between the Wui and the Plaintiff. The Plaintiff refers to the Defendant’s occupation of the Subject Lot in reliance on the 2023 Sub-Tenancy Agreement between Fortune Nine and the Defendant. The Plaintiff alleges that the Wui has not granted any tenancy to Fortune Nine, so that there can be no lawful sub-tenancy granted by Fortune Nine. 13.The Plaintiff’s evidence includes Man & Man which deposes to the fact that it granted the 2023 Tenancy Agreement to the Plaintiff, and that the Wui has never granted any tenancy to Fortune Nine. The pleaded defence 14.It is important to see exactly how the Defendant has pleaded its case. 15.§3a pleads that, by virtue of the wording of the 2023 Tenancy Agreement, the Plaintiff admits that there are tenants holding over from previous tenancies who were still paying rent at the time the 2023 Tenancy Agreement was made. 16.§3b of the Defence contains the averral by the Defendant:
17.The Defendant does not plead as a matter of fact that Fortune Nine is a tenant of the Wui. Rather, they plead that that is their understanding on the basis of the contents of a letter from the solicitors of MWC and Fortune Nine to the Wui dated 15 July 2023 (“the Peter Mo letter”). Insofar as relevant to the status of Fortune Nine, the Defendant pleads their understanding that:
18.§3c pleads:
19.Accordingly, the Defendant alleges that Fortune Nine granted the 3-year 2023 Sub-Tenancy Agreement to the Defendant before the 2023 Tenancy Agreement was made. 20.At §7, the Defendant pleads that the Subject Lot appears to be different from the land subject of the 2023 Sub-Tenancy Agreement “Def_Lot764RP" (“the Boundary Issue”). No particulars nor consequences are pleaded. 21.At §10, the Defendant admits that the Defendant has been using “Def_Lot764RP" since 1 April 2023 and has refused to vacate it upon the Plaintiff’s request. The Pleaded Reply 22.The Plaintiff pleads that in the DCCJ Action, MWC and Fortune Nine had claimed a right to renew the 1986 Tenancy, and in those proceedings, the judge had determined (1) as a matter of fact, MWC and Fortune Nine had admitted by their solicitors’ letter dated 19 June 1996 that the 1986 Tenancy had not been renewed; and (2) in any event, a renewal of the 1986 Tenancy would have expired by March 2006 at the latest. The O.14 evidence 23.Yuen 1 relies upon the following matters in order to defend the O.14:
24.The Defendant has only filed evidence from Mr Yuen, a director of the Defendant. No supporting evidence is provided by Fortune Nine or MWC. 25.Ng 2 was filed in reply in support of the Plaintiff’s case:
The Issues raised on appeal 26.The Defendant has narrowed and altered its case on appeal as follows:
27.It is immediately apparent that:
The Rival Head Tenants Issue 28.This Court is required to consider whether the Defendant has raised a triable issue. The fact that an identified issue has been raised in another action does not make the issue triable. If I was satisfied that the Defendant had raised a triable defence, such that O. 14 should not be granted, then there may well be case management questions to follow as to whether there should be a consolidation or stay of any cases raising the same issues. However, the Defendant still has to demonstrate a bona fide defence. To test it the other way, if I were to find that the Defendant did have an arguable defence so that the matter should proceed to trial, that would simply be a finding on the O.14 evidence before me and that should not prejudice a decision on different facts between different parties in another court (although one would hope for sensible case management at an appropriate time). 29.At one point, Mr Chan for the Defendant lightly submitted that the Defendant did not have access to all the relevant facts or documentation. There is not one iota of evidence as to attempts made to obtain facts, documentation or evidence from anyone else. The burden is on the Defendant to establish an arguable defence in order to resist summary judgment. 30.Given Mr Chan’s argument that the Rival Head Tenants Issue should be decided in the HCA Action, and not by this Court, then it is clear that this is not a situation falling within the limb of “some other reason for trial” in this case. 31.I did not understand Mr Chan for the Defendant to seriously argue that he had adduced sufficient evidence to demonstrate a bona fide defence that Fortune Nine had better title than the Plaintiff, and/or that the 2023 Sub-Tenancy Agreement was valid as against the Plaintiff’s 2023 Tenancy Agreement. 32.In any event, the evidence before me on this issue may be summarized as follows:
33.I do not consider it necessary to decide whether the judgment in the DCCJ Action gave rise to an issue estoppel to the effect that it has already been determined that Fortune Nine has no tenancy which would take priority over the Plaintiff’s 2023 Tenancy Agreement. However, I can take at least as much regard of the description of the contemporaneous documents considered in the DCCJ Action judgment as I can of the assertions in the Peter Mo Letter and the HCA Action further and better particulars, where none of these documents are adduced as being true in the action before me. 34.I need only decide whether the Defendant has raised a bona fide arguable defence to the Plaintiff’s claim against the Defendant for possession of the Subject Lot. Certainly, the Defendant has not established on evidence an arguable case of having a valid tenancy agreement as against the Plaintiff, in the light of the uncontested direct evidence that only the Plaintiff has been granted a tenancy. The fact that Fortune Nine has brought the HCA Action asserting a tenancy as against the Plaintiff does not take the matter further. The Possession Issue 35.This issue was raised for the first time before the Master below. As to the first limb, that the Defendant is no longer in possession of the Subject Lot:
36.As to the second limb, the Defendant’s submission was that the Defendant should only be surrendering possession to its landlord, Fortune Nine, and to surrender possession to the Plaintiff would prevent that and give rise to problems if Fortune Nine is held in the HCA Action to be the true head-tenant. This submission must fail on the basis that the Defendant has not established an arguable case of the validity of the 2023 Sub-Tenancy Agreement. The Boundary Issue 37.The Defendant’s complaint is that in comparing the plans attached to the 2023 Tenancy Agreement and the 2023 Sub-Tenancy Agreement, it is not clear that they are identifying the same land. As accepted by Mr Chan, the plan attached to the 2023 Tenancy Agreement is an official plan whereas the plan attached to the 2023 Sub-Tenancy Agreement is a sketch plan. 38.If the Defendant considered that it was in occupation of a different piece of land than that claimed by the Plaintiff, that would have been a matter to plead and prove clearly. 39.The Defendant has done no more than raise a query as to whether an official plan differs from a sketch plan. That is clearly insufficient to raise an arguable defence to the Plaintiff’s claim for the possession of the Subject Lot. Order 40.Accordingly, I dismiss the appeal. As submitted by counsel, should this be the outcome, costs follow the event. The Defendant is to pay the Plaintiff’s costs of the appeal, to be taxed if not agreed.
Mr K.M. Chong and Ms Vivian Li instructed by Samuel Chow Solicitors for the Plaintiff Mr Jevons Chan instructed by Bennett Chan & Co., for the Defendant | ||||||||||||||||||||||||||