CHOW SIU YING AND ANOTHER v. WAN LUEN TUNG

DCCJ 6597/2020

[2021] HKDC 1382

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6597 OF 2020

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BETWEEN

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DECISION

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1.  The following is based upon the oral decision given at the hearing.

2.  This is the 1^st and 2^nd plaintiffs’ application for summary judgment.

3.  As far as I can see, this is a claim based on an alleged loan agreement so this is like a debt action. The 1^st plaintiff is the mother of the 2^nd plaintiff. At the material time the loan was allegedly given, the 2^nd plaintiff and the defendant were boyfriend/girlfriend. The loan was given in a context so that there would be a purchase of a flat in Yuen Long. This loan was given by the 1^st and 2^nd plaintiffs to the defendant.

4.  The flat was purchased in the defendant’s sole name and basically this is the 1^st and 2^nd plaintiffs’ claim for repayment of this loan. The defendant does not dispute that there was this loan. Their defence was that there was an oral agreement on the repayment terms. That is, that the loan can be repaid when the property is sold. Now, the context of this case is that the parties are not commercial lenders, there was no loan document, no written one anyway, not signed, nothing that is there as far as I can see. There were a few WhatsApp messages and as far as I can see, that’s how the parties come to the agreement, if any, of this loan agreement or alleged loan agreement.

5.  So the issue before the court is whether the defendant has shown there were triable issues, whether that she has a real or bona fide defence. The plaintiffs’ arguments were based on mainly two points: one is they say that the defendant has never raised this oral agreement in the defence, this was only raised in her amended defence. The defendant argued that the reason why this was not raised was because the original statement of claim did not allege a loan agreement per se and so this was not addressed. So when this was amended and when this issue was raised, then the amended defence addressed it.

6.  The court is not prepared to go into a detailed analysis of the minds of the parties at this stage, and especially the law is that we are not here to conduct a mini trial, let alone a mini trial based on whatever evidence and submissions, based on whatever evidence that might or might not come. If there is any inconsistency in the pleadings, it may or may not have an explanation. By simply raising allegations of possible inconsistency in the pleadings, and I am not even sure if it is an inconsistency, I don’t think it is sufficient to say that, therefore, there is no real or bona fide defence. There might be a good explanation of why that oral agreement was not raised in the first place. It’s a matter of cross-examination at trial.

7.  Secondly, the 1^st and 2^nd plaintiffs say that it’s illogical for somebody to give a loan under these oral agreements because the property was in the sole name of the defendant, so if the defendant never were to sell the flat, the loan would never get repaid and because such terms were illogical, therefore it could not have happened, that it was not credible. However, you have to put this into context: none of these were professional lenders or lawyers who are looking to every possible scenario in the future. Even if a term of repayment was illogical, it doesn’t mean that it was not given that way. There is no evidence before me that can say that people cannot behave illogically or otherwise must have thought out the terms clearly. That’s what you instruct lawyers for, I suppose, otherwise the lawyers will be out of their jobs.

8.  So in that sense, without evidence, I think the court is not in a position at this stage to say this alleged oral agreement on the terms of repayment did not happen or that there is no fair probability or reasonable grounds that this oral agreement exists. So this is actually a simple case. They have a loan, that is not in dispute, it is just the terms of repayment that are in dispute. Since, as I said, they are not professional lenders, the 1^st and 2^nd plaintiffs were not professional lenders, there’s no documents, proper loan agreement documents, and also there’s no written document of any repayment term.

9.  So it is not a clear-cut case. The court cannot, at this stage, make the decision for summary judgment. As such, I will dismiss the 1^st and 2^nd plaintiffs’ application.

10.  The costs of and occasioned by this application be to the defendant summarily assessed at HK$70,000 inclusive of counsel’s brief of 40,000 (item E) payable forthwith.