Read the full judgment text of CACV 000168/1997 on BabelCite. This Court of Appeal judgment was delivered on 23 October 1997 before Nazareth VP, Godfrey JA, Keith J.
Civil law – summary judgment – Order 14 of the Rules of the High Court – construction of guarantee – tenant and licensees under licence/tenancy of commercial premises at Harbour Centre, Wanchai – whether construction of guarantee depends on disputed factual issues of intention – whether obligation under clause 3 of the Guarantee was limited to periods of licensees' use and occupation – clauses 1 and 6 expressly linked certain rights and the indemnity to use and occupation, but clause 3 contained no such limitation – appeal from order of Wong J. granting defendants unconditional leave to defend – whether the judge was right to treat the question as one of fact – court holds construction does not depend on disputed facts and is determinable on summary judgment application – evidence of intention is inadmissible on questions of construction – held that the deliberate inclusion of restrictions in clauses 1 and 6 and their absence in clause 3 was intentional – no term limiting the guarantee to periods of occupation can be implied by necessary implication – the parties would not necessarily have agreed to such limitation – licensees purchased the right to use and occupy in exchange for an unlimited guarantee of the rent – first issue identified by the judge (whether D2-D7 were responsible for D1's defaults) not arguable as guarantor undertakes a primary or secondary obligation to pay rent – appeal allowed – master's order for the plaintiff restored – plaintiff awarded costs before the master, the judge below, and the Court of Appeal.
Legal issues: Whether proper construction of the Guarantee requires determination of factual issues about the parties' intention · Whether clause 3 of the Guarantee limits the licensees' liability to rent during periods of their use and occupation only
Outcome: Appeal allowed; the master's summary judgment for the plaintiff restored.