Nov 23, 2021
Choi San San v. Hui Yan Sui William HCA 2243/2019;  HKCFI 2907
The Plaintiff sought to enforce repayment of a $10 million loan which the Defendant had borrowed for investment. There was no dispute that the Defendant had in fact repaid $10.25 million. The Plaintiff argued that this repayment was interest on the loan and the principal loan remained outstanding. The Defendant argued that there was a collateral agreement to the loan agreement that stipulated that the Defendant would only be liable to pay interest on the loan if the Defendant successfully obtained a certain level of return on his investment.
Master Anthony Chan dismissed the Plaintiff’s summary judgment application due to typographical errors and discrepancies in the Statement of Claim without considering the merits. The Plaintiff corrected these errors by amendments and sought to appeal the master’s decision.
Recorder Eugene Fung allowed the appeal based on (1) the little evidence adduced by the Defendant regarding the collateral agreement; (2) the collateral agreement was inconsistent with contemporaneous documents and (3) the Defendant’s own conduct was inconsistent with the existence of the collateral agreement.
The main takeaway from judgment is a reminder that a Defendant resisting summary judgment applications must adduce sufficient evidence to persuade the court that his version of events is believable and amounts to an arguable defence in law.
The full judgment is available here.