Ever Long Finance Ltd v. Chan Pui Ching Rebecca

HCMP 619/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 619 OF 2015

(ON AN INTENDED APPEAL FROM DCCJ NO. 2484 OF 2014)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.In this matter, Deputy District Judge J Chow granted summary judgment on 17 December 2014 in favour of the Plaintiff in respect of a money-lending transaction. The Defendant applied for leave to appeal, such leave was refused by the judge on 5 March 2015. She now applies to us for leave to appeal and stay of execution of the judgment.

2.Having considered the written submissions of counsel and heard the oral submissions, we decide to grant leave.  We also decide to grant a stay of execution of the judgment pending the determination of the appeal.

3.The defence case is that the Plaintiff was privy to the canvassing of the loan by two other companies: Supreme Era (Asia) Ltd [“SEAL”] and Unique Mortgage Consultants Ltd [“Unique Mortgage”].  Out of a loan of $930,000, the Plaintiff only paid to the Defendant the sum of $685,876.  The other sums were paid to others (which, the Plaintiff said, was in accordance with the instructions of the Defendant),

(a) $182,000 to SEAL as consultation fee (for procuring the loan);

(b) $27,900 to Unique Mortgage as consultation fee (again for procuring the loan);

(c) $27,024 to the Plaintiff as the first instalment in repaying the loan;

(d) $700 to the Plaintiff as valuation fees; and

(e) $6,500 to the solicitors for the Plaintiff as the Plaintiff’s legal costs and disbursement.

4.In those circumstances, Mr Sarony SC submitted that the loan was tainted with illegality for contravention of sections 27(3) and 29(10) of the Money Lenders Ordinance.

5.There are serious disputes of fact concerning the circumstances leading to the grant of the loan.  Yet, the Plaintiff could not dispute that Unique Mortgage was its agent and it was through that company that the loan was arranged.  It however said it had no knowledge of the dealings between SEAL and the Defendant.  We are of the view that, notwithstanding the submissions of Mr Lau for the Plaintiff, it is eminently arguable that this is not a case for summary judgment.

6.We are further of the view there is a strong likelihood that the appeal would succeed and for that reason it is appropriate to grant a stay of execution pending appeal.  We said so because the judge somehow took the view (at paragraph 25 of her judgment of 17 December 2014) that the dealings between the defendant and SEAL and Unique Mortgage were antecedent arrangements which were irrelevant for present purposes.  In the circumstances of the present case, as the matter stands before us (and without pre-empting arguments to be advanced in the substantive appeal), we have strong reservations on that conclusion.

7.We also order costs of the application for leave to appeal be in the cause of the appeal.

Mr Raymond Lau, instructed by Bough & Co, for the plaintiff

Mr Neville Sarony QC, SC and Mr Jang Sae Pang, instructed by Gary Lau & Partners, for the defendant