Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Great Pacific Investments Ltd v 张华荣

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date26 September 2023
Neutral Citation[2023] HKCFI 2405
Subject MatterCivil Action
Judgement NumberHCA13/2022
Year2023
HCA13A/2022 GREAT PACIFIC INVESTMENTS LTD v. 张华荣

HCA 13/2022

[2023] HKCFI 2405

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 13 OF 2022

____________

BETWEEN

GREAT PACIFIC INVESTMENTS LTD. Plaintiff

and
张华荣 Defendant

____________

Before: Deputy High Court Judge MK Liu in Chambers (by Paper Disposal)
Date of Written Submissions by the Plaintiff: 6, 7 and 20 September 2023
Date of Written Submissions by the Defendant: 6, 15 and 22 September 2023
Date of Decision: 26 September 2023

_____________

D E C I S I O N

_____________

1. On 5 June 2023, I dismissed Ds’ Appeal against the Master’s Order and allowed P’s Summons for summary judgment against D (“the June Decision”). Reasons for Decision were handed down on 9 June 2023 (“the Reasons for Decision”).[1] By a notice of appeal dated 3 July 2023 (“the Notice of Appeal”), D lodged an appeal against my decision dated 5 June 2023. By a summons dated 15 August 2023 (“the Stay Summons”), D seeks a stay of execution pending the determination of the appeal.

2. I have directed that the Stay Summons be determined on paper without an oral hearing. This is my decision on the Stay Summons. For ease of reference, the abbreviations used in the Reasons for Decision are adopted herein.

Discussion

3. The existence of an arguable appeal (that is, one with reasonable prospects of success) is the minimum requirement before a court would even consider granting a stay. If there is no arguable appeal, no stay would be granted, however exceptional the circumstances may be otherwise justifying a stay of execution.[2]

4. The grounds of appeal are contained in [6], [7] and [8] of the Notice of Appeal, which are as follows:

“6. Having failed to consider or give sufficient weight to the following:-

(1) By reason of the Plaintiff serving on the Defendant blank Form nos. 16 and 16B together with the Plaintiff’s Writ of Summons, the Defendant was led to make a part admission in the Form 16 despite it not being applicable to the Plaintiff’s claim, which included both a monetary claim and a claim for specific performance;

(2) After the Plaintiff amended its Statement of Claim, the Defendant had filed an acknowledgment of service of the Amended Writ of Summons, in which he clearly stated that he intends to contest the present proceedings;

(3) In his Defence, the Defendant made no admission to the plea of RMB55,000,000 as claimed in paragraph 18 of the Amended Statement of Claim; and

(4) The Defendant had stated (in his 2nd Affirmation) that he had a clear and meritorious defence to the Plaintiff’s claim of, inter alia, RMB162,200,000, which included its claim for the amount of RMB55,000,000;

the learned Judge erred in upholding (at §48) the Partial Final Judgment Order based upon the admissions made by the Defendant.

7. The learned Judge erred in ruling (at §§25-30) that the estoppel defence is unarguable:-

(1) In holding (at §27(2)) that the Defendant had failed to adduce sufficient evidence to show that arguably, Yang had made any clear and unequivocal representations on behalf of the Plaintiff to the Defendant, the learned Judge failed to take into consideration or give sufficient weight to the evidence that Yang had unequivocally told the Defendant that he would cause the present proceedings to be withdrawn or stayed.

(2) In holding (at §27(3)-(4)) that it is unbelievable that the Defendant would genuinely believe that Yang had the authority to act on behalf of the Defendant to postpone or extinguish the Plaintiff’s claim, the learned Judge failed to take into consideration or give sufficient weight to the commercial reality and in particular the evidence that Yang, being Vice-President of the Public Affair Department of Pou Chen which is a majority shareholder of the Plaintiff’s immediate parent company, had repeatedly represented to the Defendant that he would cause the present proceedings to be withdrawn or stayed.

(3) There is no basis for the learned Judge to find (at §28) that by virtue of the Defendant being a majority shareholder of the Target Company, he would have given financial support in support thereof, irrespective of the representations by Yang. The learned Judge failed to take into consideration or give sufficient weight to the pleading that the Defendant had, in reliance of the representations by Yang, continued to abide by the common understanding between the parties to keep the Target Company in a healthy financial status.

(4) Further, the learned Judge wrongly focused (at §29) on the need for a written agreement between the parties in order to vary the Defendant’s repayment obligations when the Defendant is raising an equitable defence of estoppel.

8. The learned Judge erred in ruling (at §§31-45) that the force majeure defence is unarguable:-

(1)...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT