Dbs Bank (Hong Kong) Ltd v. Chow Kam Wah

DCCJ 4292/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4292 OF 2010

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Before: Deputy District Judge Victor Dawes

Date of Hearing: 15 November 2012

Date of Decision: 20 November 2012

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DECISION

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1.This is the plaintiff’s application for summary judgment.

2.The plaintiff’s claim is for HK$58,070.82 together with interest and costs.  The claim is for the outstanding indebtedness owed by the defendant under the facilities granted under a visa card (Account No 4921-0315-1791-6006) (“Card Account”).  The application for the visa card was made back in May 1997.  The sum in question was the outstanding amount as at the date of the writ.

3.Under the DBS Credit Card Terms and Conditions (“Terms and Conditions”):-

(1) the plaintiff has the right to terminate the visa card “where circumstances are considered reasonable” (clause 5.1);

(2) upon termination, any outstanding balance shall become repayable at once (clause 5.3); and

(3) the entire outstanding balance of the Card Account shall become immediately due and payable:-

(a) upon demand by the plaintiff; and/or

(b) upon termination or cancellation of the visa card; and/or

(c) if the defendant was in breach of any of the terms and conditions in the agreement (clause 5.5).

4.The plaintiff’s case is that given the defendant’s breaches of the payment obligations and delinquency record, the visa card was terminated on 14 July 2010.  Despite repeated demands, the defendant had failed to settle the outstanding indebtedness.

5.In his defence, the defendant relied on the following matters:-

(a)  the facilities in question were offered by the plaintiff and there was no default on his part in complying with the minimum payment obligations;

(b) in August/September 2010, the plaintiff terminated the facilities and demanded repayment of the outstanding indebtedness.  He was therefore not in a position to repay the full amount;

(c)  in his discussions with the plaintiff’s staff, the idea of individual voluntary arrangement was considered;

(d) during the discussion, a Mr Yiu of the plaintiff also asked him to deposit HK$5,482.10 into the card account and his situation would be reviewed.  Mr Yiu also suggested that interest was not payable when his situation was being reviewed.       

6.I am of the view that there is no triable issue/arguable defence on the defendant’s part.  The defendant argued that it is unfair of the plaintiff to demand repayment of all outstanding indebtedness in one go.  However, the plaintiff is clearly entitled to do so pursuant to clause 5.5 of the Terms and Conditions.  There is no suggestion that the defendant is not bound by the Terms and Conditions.  It is also clear from the evidence before the court that there was no agreement to suspend or vary the payment obligations.

7.In the circumstances, I allow the plaintiff’s application for summary judgment and make an order in terms of paragraphs 1 and 2 of the inter parte summons dated 25 July 2012.  I also order that the defendant is to pay the plaintiff’s costs of the action including the costs of the application which are to be taxed if not agreed.  The costs order is an order nisi and is to be made absolute 14 days after the handing down of this judgment.

Mr MS Cheng of Adrian Yeung & Cheng for the plaintiff

Defendant, appeared in person