Orix Asia Ltd v Wong Chi Ming And Another

CourtDistrict Court (Hong Kong)
Judgment Date16 April 2008
Judgement NumberDCCJ5049/2007
Subject MatterCivil Action
DCCJ005049/2007 ORIX ASIA LTD v. WONG CHI MING AND ANOTHER

DCCJ 5049 / 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5049 OF 2007

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BETWEEN

ORIX ASIA LIMITED Plaintiff
and
WONG CHI MING 4th Defendant
LEE KAI SUM SUMMY 5th Defendant

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Coram: His Honour Judge Thomas Au in Chambers
(open to public)
Date of Hearing: 16 April 2008
Date of Delivering Judgment: 16 April 2008

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JUDGMENT

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1. Mr Wong (4th Defendant) and Mr Lee (5th Defendant) both signed a guarantee dated 11 March 2005 in favour of Orix (the Plaintiff) to guarantee the liability of Manufacturing Modes International Ltd (1st Defendant). The guarantee was given in consideration of Orix entering into a lease agreement with Manufacturing for leasing to it four sets of machine, with an option to purchase them at the end of the lease period.

2. Orix now applies for summary judgment against Mr Wong and Mr Lee on the basis of the guarantee for the sums of $101,118.33 and $583,083.80.

3. Although formerly legally represented, Mr Wong and Mr Lee respectively filed a Notice of Intention to Act in Person on 7 April 2008, upon which they also provide their respective service address. They however do not appear at today’s hearing.

4. Mr Kwan for Orix at the hearing undertakes to the Court that an affirmation of service would be filed within today to confirm that the skeleton with the lists of authorities, and the hearing bundle have been served on Mr Wong and Mr Lee respectively at the said service addresses. In light of this undertaking and the fact that today’s hearing was fixed when Mr Wong and Mr Lee were still legally represented, I am satisfied that they should have been aware of the hearing via their former solicitors, and the service of the skeleton and hearing bundle. They could appear today if they choose to do so. In the circumstances, I am also satisfied that the hearing should continue in their absence.

Background

5. Between 2 May 2002 and 27 August 2006, Mr Wong and Mr Lee were directors (with others) of Manufacturing. They have also until today been its shareholders.

6. By a facility letter dated 15 October 2004, Orix offered to Manufacturing credit facilities to finance Manufacturing to purchase, inter alia, the four sets of machine by entering into a separate lease agreement.

7. It is provided in the facility letter that, one of the security documents required by Orix is a guarantee executed by, inter alia, Mr Wong and Mr Lee.

8. Mr Wong and Mr Lee respectively signed this facility letter.

9. As mentioned above, on 11 March 2005, Mr Wong and Mr Lee executed the guarantee, guaranteeing Manufacturing’s liability to repay Orix under the lease agreement.

10. On 3 May 2005, Manufacturing signed the lease agreement with Orix for the leasing of the 4 machines. The monthly rental was $98,685.00, for a period of 36 months. The option price to purchase the machines at the end of the lease period was $500.00.

11. The machines have since been installed in Manufacturing’s factory located in Shenzhen.

12. On 27 August 2006, Mr Wong and Mr Lee resigned as directors of Manufacturing.

13. In October 2007, Manufacturing defaulted in its payment of the rental under the lease agreement.

14. By its solicitors’ letter dated 22 October 2007 sent respectively to Manufacturing, Mr Wong and Mr Lee, Orix demanded them respectively to pay the total sum of $694,985.66 as loss and damage...

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