Read the full judgment text of HCMP 874/2009 on BabelCite. This Court of First Instance judgment was delivered on 30 March 2010 before Hon Fok J.
Civil procedure – mortgage action commenced by originating summons – summary judgment under RHC O. 28 r. 4(1) – burden on plaintiff to show prima facie entitlement and on defendant to raise a triable issue – approach approximating to summary judgment under O. 14. Banking law – Bank of China (Hong Kong) Limited (Merger) Ordinance (Cap. 1167) – scope of merger limited to businesses and undertakings of the Hong Kong branches of BOC and Mainland-incorporated banks in the Bank of China Group, Hua Chiao Commercial Bank Limited, and the Shenzhen branches of Kwangtung Provincial Bank and Sin Hua Bank Limited – only 'existing' property and liabilities of those Hong Kong branches vesting in the plaintiff – oral agreement alleged to have been made by BOC and/or Kincheng China to pay an additional HK$186 million for acquisition of Beijing Central Plaza – whether this liability was part of the business of KBC HK Branch or BOC HK Branch. Corporate – Kincheng China as subsidiary of Mainland-incorporated Kincheng Banking Corporation rather than of KBC HK Branch – transfer of entire share capital of Kincheng China to Gold Fortune Management Corporation prior to appointed time – liabilities of Kincheng China not within section 2(1) definition of 'existing' and not transferred. Evidence – minutes, internal memos and correspondence regarding Beijing Central Plaza deal – BOC HK & Macau Regional Office as separate entity from BOC HK Branch and KBC HK Branch – participation of Hong Kong branch staff in negotiations not elevating Kincheng China's obligation into the business of those branches. Defences – set-off and counterclaim – defendants' own conduct in 2008 correspondence acknowledging indebtedness and proposing disposal of charged properties without raising Kincheng China default – late and unparticularised assertion of set-off after commencement of proceedings. Outcome – appeal against master's summary judgment dismissed – defendants ordered to pay costs of appeal to plaintiff on full indemnity basis with certificate for two counsel – master's order for HK$265,840,469.02 with interest and delivery of vacant possession of the 1st, 2nd and 3rd Charged Properties upheld.
Legal issues: Scope of businesses and liabilities transferred under the Merger Ordinance · Whether defendants raised a triable defence of set-off and counterclaim
Outcome: Appeal against the master's summary judgment order dismissed; plaintiff entitled to summary judgment for HK$265,840,469.02 with interest, and orders for delivery of vacant possession of the charged properties stand.
Cites 2 cases