WEA INTERNATIONAL INC. v. SOLITON (HK) LTD

HCA 1/2018

[2019] HKCFI 751

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1 OF 2018

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J U D G M E N T

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1.  The payment is expressed in clause 6 of the Agreement to be a prepayment of the sums payable under the Agreement, and is referred to as a minimum guarantee of the amount payable. It is further expressed to be non-refundable, and to be due and payable upon signing of the Agreement.

2.  Hence, on plain reading of the clause and on construction of the Agreement, the payment of $2.1m is not a deposit, and clause 6 imposes on the Defendant a primary obligation to pay the amount, irrespective of whether and what damages are sustained by Plaintiff upon termination of the Agreement in the event of the Defendant’s breach. 

3.  There is no defence disclosed to the Plaintiff’s claim of the Defendant’s breach of the Agreement by its default to make payment under clause 6, whether on the ground that the payment is not yet due, or that the payment sought is penal.

4.  Accordingly, I will grant judgment in terms of the Order 14 summons, as sought.