Martijn Kuenen v. John Roger Nekvapil
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DCCJ2023/2009 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 2023 OF 2009 ___________________ BETWEEN
___________________ Before: Deputy District Judge R. Yu in Court Date of Hearing: 29 October 2010 Date of Ruling: 29 October 2010 ___________________ JUDGMENT ___________________ 1.This is an action taken out by the plaintiff to recover from the defendant a loan that the plaintiff has advanced to the defendant in the total sum of €61,655.71. 2.The notice for today’s hearing has been served on the defendant, and I am satisfied with the service. The defendant is absent today. And on the application of the plaintiff, I allowed the matter to proceed on ex parte basis. Basically, the plaintiff has to prove his case and he has only one witness, which is the plaintiff himself. 3.For the background of this claim, I only need to refer to paragraph 3 of the statement of claim. The plaintiff claimed that he had lent a total sum of €61,655.71 to the defendant by two separate payments. The first loan was advanced on 25 January 2007 in the sum of €23,166.96. And the second loan was advanced on 12 February 2007 for €38,488.75. 4.The plaintiff, when giving evidence himself, adopted his witness statement dated 11 February 2010 as the evidence-in-chief. I only need to quote his 5th paragraph when he mentioned that in about January 2007, the defendant told him he incurred various liability as a result of the winding up of his Chinese factory, and asked the plaintiff for a loan to repay his debt. He said he wished to make a fresh start of his career. At the request of the defendant, the plaintiff advanced the said two loans to the defendant. 5.And in support of his advancement, the plaintiff attached to his witness statement the relevant bank statement, and which is now part of his evidence. I refer to “MK1”, the 1st exhibit to his witness statement, which shows that a company by the name Canenco BV has on 25 January 2007 advanced €23,166.96 to the defendant. Further, on 12 February 2007, Canenco BV advanced another sum of €53,884.27 to the defendant. 6.The plaintiff further explained that Canenco is his company, and it’s more convenient to transfer money from Netherlands to Hong Kong through company’s account. While the money was transferred through the company, he was primarily responsible for re-paying the money back to the company. 7.As for the transmission on 12 February 2007, the amount is not entirely a loan to the defendant. By then, the plaintiff and the defendant were starting up a company in Hong Kong. US$20,000 out of the said transmission was earmarked for the start up funding for the company. The balance of the transmission, and applying the exchange rate by then, amounted to €38,488.75 is the second advancement to the defendant by the plaintiff. 8.I accept the evidence of the plaintiff, and I rule that he had made those advancements to the defendant as a loan. 9.The plaintiff also explained in his evidence that the loans were to be repaid in 12 months’ time. Accordingly, the defendant was liable to repay him the full sum some time in January or February 2008. But the defendant had failed to do so and accordingly, he had to take out the present proceedings to recover the amount. 10.I noted that his evidence cover more than the loan but I do not consider they are necessary for proving his case, and I make no reference to the rest of his evidence. 11.In summary, I conclude that the plaintiff’s claim was made out and it proved that he had made the advancement to the defendant as claimed, it has become due and it has not been repaid and, accordingly, judgment should be granted to the plaintiff for the sum of €61,655.71. (Discussion re interest) 12.Judgment to the plaintiff for €61,655.71 with interest at 8 per cent per annum from 21 April 2009 until today, and thereafter at judgment rate until payment. (Discussion re costs) 13.Costs of the action to the plaintiff summarily accessed at $70,000.
Mr Jacky Lai, instructed by Messrs Chiu, Szeto & Cheng, for the plaintiff Defendant absent |