XCHRX CHUNG NAM SEA LAND INFRASTRUCTURE LTD. v. WEST DYNAMIC INTERNATIONAL LTD.

HCA 5520/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 5520 OF 1999

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J U D G M E N T

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1. This is an application for summary judgment for moneys said to be due to the plaintiff under an agreement between the plaintiff and the defendant made on 1 February 1996. Under this agreement, the plaintiff (assuming it has performed its own obligations thereunder) is entitled to payments of $9,084,000.00 per annum. One such payment has indeed been made, not however by the defendant but by a third party ("Globeland").

2. The plaintiff's obligation was to pay a sum of cash and to procure the issue of certain shares to, or at the direction of the defendant. In fact, it paid the cash and caused the shares to be issued to Globeland.

3. The issue is whether the defendant ever gave the plaintiff instructions so to do. So far as the cash is concerned, there is a letter of 11 June 1996 which appears to give such instructions, but the defendant disowns this letter. So far as the shares are concerned, there is no evidence of such instructions.

4. The defendant's case is that the payment and the issue of shares to Globeland was not performance by the plaintiff of its obligations. The plaintiff says that Globeland and the defendant (which appear to share the same address) are really one and the same, but there is no evidence to support that assertion.

5. This is not a suitable case for judgment under Order 14 because there are substantial issues between the parties which ought to be tried. I will give the defendant unconditional leave to defend. The costs will be costs in the cause.