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Korea Trade Insurance Corporation v Fortune Dragon Motors (International) Co Ltd

Judgment Cited authorities 1 Cited in 1 Precedent Map Related
Vincent
Judgment Date07 December 2018
Neutral Citation[2018] HKCFI 2701
Year2018
Judgement NumberHCA1281/2018
Subject MatterCivil Action
CourtCourt of First Instance (Hong Kong)
HCA1281/2018 KOREA TRADE INSURANCE CORPORATION v. FORTUNE DRAGON MOTORS (INTERNATIONAL) CO LTD

HCA 1281 / 2018

[2018] HKCFI 2701

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1281 OF 2018

_______________

BETWEEN
KOREA TRADE INSURANCE CORPORATION Plaintiff
and
FORTUNE DRAGON MOTORS
(INTERNATIONAL) COMPANY LIMITED
祥龍汽車(國際)有際公司 Defendant

_______________

Before: Master Kenneth K Y Lam in Chambers
Date of Hearing: 5 December 2018
Date of Decision: 5 December 2018
Date of Reasons for Decision: 7 December 2018

_____________________________

REASONS FOR DECISION

_____________________________

Introduction

1. By a summons filed on 19 June 2018 (“the Summons”), the Plaintiff (“P”) applied for summary judgment against the Defendant (“D”) under Order 14 of the Rules of the High Court (“RHC”) on the ground that (according to P) D had no defence to P’s claim in the Statement of Claim (“SoC”).

2. I heard the Summons substantively on 5 December 2018, after which I (1) entered summary judgment in favour of P against D in terms of paragraph 1 of the Summons [A/8]; and (2) ordered D to pay P the costs of and occasioned by the Summons, to be taxed if not agreed, with Certificate for Counsel (“the Decision”).

3. My reasons for the Decision are as set out below.

SoC

4. For the purpose of explaining the parties’ arguments, I would set out P’s pleaded case.

5. P’s pleaded case was that by a signed deed of settlement dated 10 April 2018 (“the Deed”), D agreed to pay P, by 16 installments, the total sum of USD 1,165,822.10. P averred that D, in breach of the terms of the Deed, failed to pay P in full as agreed, and as of 15 June 2018 there was an unpaid balance of USD 1,075,822.10 (“the Outstanding Sum”). On this simple basis, P claimed the Outstanding Sum plus contractual interests.

6. D never filed its Defence, though it had on 10 July 2018 filed an affirmation [B/24] in opposition of the Summons in which D: -

(1) Admitted its execution of the Deed [para 21];

(2) Stated its intention to challenge the validity of the Deed [para 26]; and

(3) Stated its “view” that P was “obliged” to prove its locus to sue D [para 29].

Submissions of D

7. In opposition of the Summons, Ms Cindy Kong, Counsel for D, submitted, inter alia, that I should not enter summary judgment against D because P failed to plead the “background” leading up to D’s execution of the Deed and as such P failed to establish itself as a “rightful creditor” of D with locus to sue D. Ms Kong further said it would be “inequitable” for judgment in favour of P to be entered against D when the “background” leading to D’s execution of the Deed had not been made clear by P.

Submissions of P

8. In answering D’s submissions and in support of the Summons, Mr Leo Yu, Counsel for P, submitted, inter alia, that D had no real defence because: -

(1) The undisputed contemporaneous documents [C/122] [C/124] showed that D had consulted its own lawyers and considered the Deed for 11 days before executing the same, so no case for challenging the validity of the Deed had ever been made out by D; and

(2) On P’s pleaded case its locus to sue D arose out of the Deed itself – there was nothing in D’s submissions that P had to plead the background to the Deed.

My View

9. In gist, I agreed with the submissions of P and disagreed with the submissions of D.

10. I read the Deed. Its Recital (F) explicitly stated that the Deed was the end product of a settlement reached by the parties after negotiation. Its Recital (E) explicitly stated, inter alia, the following: -

“… For the purpose of this Deed and upon mutual consensus of all parties, the parties hereto acknowledge and confirm that the outstanding principal and interests those [D] now owes to [P] amount to a total sum of USD 1,165,822.10… which sums shall become the principal amount of this Deed”

11. By reason of the above, P was perfectly entitled to rely on the Deed itself as the basis of its claim in the way it did, without pleading the negotiation or background which led to the Deed’s execution. There was nothing in D’s...

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1 cases
  • Lead Properties Ltd v Secretary For Justice
    • Hong Kong
    • 28 October 2022
    ...otherwise by reason of the doctrine of estoppel by deed: see Korea Trade Insurance Corp v Fortune Dragon Motors (International) Co Ltd [2018] HKCFI 2701 at §13, decision affirmed by Mimmie Chan J on appeal in [2019] HKCFI For the reasons stated above, I am satisfied that a vesting order sho......

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