ONFEM HOLDINGS LTD v. YU LAP ON STEPHEN AND OTHERS

HCA943/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.943 OF 2003

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J U D G M E N T

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1. The plaintiff, having already obtained judgment against the 2nd and 5th defendants, now applies for summary judgment under Order 14 of the Rules of the High Court against the 1st, 3rd, 4th and 6th defendants. The 1st, 2nd and 3rd defendants were and are directors of one Condo Curtain Wall Co. Ltd ("CCW") and a BVI company, Wellstep Management Ltd ("Wellstep"). Those defendants respectively wholly own the 4th, 5th and 6th defendants which are also BVI companies and each of those companies owns 16% of the shares of Wellstep. Condo Engineering (China) Ltd ("Condo China") is a company incorporated in Hong Kong and a wholly owned subsidiary of Wellstep.

2. The plaintiff's claims against the defendants are based on three virtually identical sets of two deeds executed by them. The first deed in each set is a deed of counter-indemnity dated 23 March 1998 (the "First Deed") by which each defendant undertook to indemnify the plaintiff against 16% liability of the principal and interest of the indebtedness and all other monies due or to become due to the plaintiff by "the Borrower" which was defined as any company within the Condo Group. The Condo Group was in turn defined in the deed as meaning CCW and/or Wellstep and/or the subsidiaries of CCW and/or Wellstep for the time being as listed the schedule to the first deed.

3. The second deed in each set is a deed of counter-indemnity, entered into by the defendants on different dates in January 1999 (the "Second Deed") by which each defendant undertook to indemnify the plaintiff against all losses as a result of the enforcement of guarantees provided by it in favour of any banks to secure borrowings by the Borrower from time to time, provided that the defendants' liability was not to exceed 16% of the aggregate amount of the plaintiff's liabilities under those bank guarantees.

4. It is not in dispute that the plaintiff entered into the various loan agreements and made the loans set out in the Schedule to the Statement of Claim, although the defendants say that they were made, not to Condo China as averred by the plaintiff but to the Condo Group. The plaintiff claims that these loans have not been repaid, and outstanding amount due to it by Condo China as at 30 November 2002 was $52,605,796.94.

5. The plaintiff further claims that on 21 July 2000 it executed a guarantee in favour of the Hong Kong and Shanghai Banking Corporation ("HSBC") to pay on demand all moneys owing by Condo China and CCW to that bank, up to a maximum of $45,000,000.00 plus default interest. As at 6 February 2003 HSBC had advanced a total of over $49 million and on 8 February 2003 it demanded immediate payment by the plaintiff of $45,000,000.00 plus default interest.

6. The plaintiff further claims that by a facility letter dated 28 January 2000, the Bank of East Asia ("BEA") granted banking facilities to CCW, Condo China and the plaintiff subject to the provision of a pledge of a time deposit of $5,000,000.00 and a corporate guarantee executed by the plaintiff as security for the facilities. The plaintiff on 16 March 2000 executed a Deed of Charge on Cash Deposit in favour of the BEA and executed a guarantee in favour of BEA to secure the facilities. On 20 February 2002 the BEA pursuant to the terms of the Charge over Deposit applied part of the plaintiff's deposit with it in the sum of $5,010,000.00 in settlement of the indebtedness owed to it by CCW and Condo China.

7. Accordingly the plaintiff now, under the respective deeds, claims from the defendants 16% of the loans granted by it to Condo China, 16% of the maximum liabilities under its guarantee to the HSBC, and 16% of its liabilities under the facility letter of the BEA. The total claim is for $16,418,527.00 plus continuing interest at the contractual rates.

8. The defendants have filed a Defence. They aver that in 1995, using a subsidiary named Metro Success Ltd., the plaintiff acquired 100% of the shares of CCW and 30% of the shares in Wellstep. In 1996, it increased its holding in Wellstep to 52%. Although the management of the Condo Group thereafter continued to be in the hands of the 1st, 2nd and 3rd defendants for some years to follow, the plaintiff had effective control of it.

9. In the circumstances, in entering into the various Deeds the defendants say that they believed and were entitled to believe the following implied terms of the said Deeds :

"	i.	The Plaintiff which wholly owned and owns Condo Curtain Wall and owned and owns through Metro Success Limited 52 of Wellstep and had and has the overall control of the Condo Group would conduct the business of the Condo Group in a bona fide manner;
	ii.	The money or monies so lent by the Plaintiff to the Condo Group would be applied for the legitimate purpose of the business of the Condo Group and not be embezzled or squandered away through the acts of the representatives of the Plaintiff for which the Plaintiff was or is vicariously liable, or which acts the Plaintiff connived or connives expressly or impliedly or negligently failed or fails to curb;
	iii.	The Plaintiff or its representatives would see to it that the Borrower of such loans or the Condo Group would repay such loans to the Plaintiff on their due dates and with due diligence;
	iv.	The Plaintiff would not connive with the Borrower or the Condo group so that loans so lent were or are not repaid;
	v.	The Plaintiff would not without the consent of the 1st, 3rd, 4th and 6th Defendants extend the repayment dates of such loans in favour of the Borrower."

10. The defendants aver that after the execution of the Deeds the management of the Condo Group was in the hands of the plaintiff through officers it placed at the Condo Group. Without the consent of the defendants, the plaintiff extended the time for the Borrower to repay the loans it had made and connived at the non-payment to the detriment of the defendants. The defendants further aver that since about 1999 the Condo Group has been run in a corrupt manner by the plaintiff's officers, a fact known to the plaintiff. These matters rendered the plaintiff in breach of the implied terms.

11. There are further averments that the Deeds are void for uncertainty, being guarantees with open-ended amounts out of the defendants' control, and further that they are void for illegality in that their underlying purpose was for the plaintiff to provide financial assistance to "connected persons" in breach of the Listing Rules of the Stock Exchange.

12. There is no dispute that the plaintiff made loans to Condo China, which have not been repaid or that it entered into bank guarantees to secure bank facilities for CCW and Condo China, under which it has had to pay the banks. The plaintiff's case on Order 14 is that the defendants are caught by the terms of the Deeds which are contracts of indemnity and so are liable to indemnify the plaintiff. The defendants' case is that the Deeds contained the implied terms pleaded, and the plaintiff is in breach of them; that its acts or omissions constituted injurious conduct against the defendants and so discharged the obligations under the deeds; that the plaintiff acted improperly in conniving at or causing the default of the principal debtors; that the plaintiff cannot take advantage of its wrong by enforcing its rights under the Deeds; and that that because the plaintiff extended time for repayment the defendants' liabilities under the Deeds are discharged. The defendants do not rely on the defence of illegality except in support of the argument that, even if there are no other grounds for allowing leave to defend, they provide "some other reason for trial".

13 .The clause of the First Deeds which is relevant to the claims against the defendants in respect of the loans reads :

"B. Counter-Indemnity for Guaranteed Indebtedness

(a) In consideration of Onfem agreeing to make loans available to the Borrower from time to time upon and subject to the terms and conditions of the relevant; loan agreements) at the request of the Guarantor, the Guarantor hereby unconditionally and irrevocably guarantees, as a continuing obligation, as principal debtor and not merely as surety, until final payment has been made indefeasibly in full, the due and prompt payment by the Borrower of the Guaranteed Indebtedness in the manner and at the times fixed or calculated under the relevant loan agreement(s) for payment of the same and the Guarantor hereby further unconditionally and irrevocably guarantees, as principal obligor and not merely the surety, the due and punctual performance and observance by the Borrower of all its obligations and liabilities under the relevant loan agreements so that whenever the Borrower fails to make any payment of in the manner provided under the relevant loan agreements and/or fails to perform and observe any of its obligations and liabilities under the loan agreements, the Guarantor shall upon demand by Onfem cause forthwith to be paid the Guaranteed Indebtedness and/or to be performed and observed the obligations and liabilities in respect of which such default has been made in accordance with the provisions of the relevant loan agreements.

(b) As a separate and independent stipulation the Guarantor shall, as between Onfem and the Guarantor, be liable for every payment to be made by the Borrower in respect of the Guaranteed Indebtedness and every obligation and liability to be performed and observed by the Borrower under the relevant loan agreements as if the Guarantor were the principal debtor and obligor in respect of such amount and liability and obligation and not merely as surety, and without any requirement for Onfem first to have recourse against the Borrower or any other person, and the Guarantor's liability shall not be discharged, impaired or reduced by any time or indulgence granted to the Borrower by Onfem or by the Borrower losing its separate identity or by any dealings or transactions between Onfem and the Borrower or. by any amendment or supplement to the loan agreements."

The clause of the Second Deeds which is relevant to the claims against the defendants in respect of the bank guarantees reads :

"2. COUNTER-INDEMNITY

In consideration of Onfem entering into or continuing to perform and observe, at the request of the Guarantor, each of the Guarantees to which Onfem is a party, the Guarantor unconditionally and irrevocably undertake and agree:

(a) to indemnify and keep indemnified Onfem against all actions, proceedings, claims, demands, losses, liabilities, damages, costs, charges and expenses of whatever nature which may result or which Onfem may suffer incur or sustain directly or indirectly in connection with or arising out of any of the Guarantees being called upon and to pay to Onfem forthwith on demand all monies and liabilities whatsoever which may from time to time be claimed or demanded from Onfem or which Onfem shall pay or become liable to pay or suffer or incur under or by reason thereof,

(b) that Onfem is irrevocably authorised to pay immediately any amounts demanded from it or which it from time to time becomes liable to pay under or by reason of any of the Guarantees being called upon without any reference to or further authority from the Guarantor and without being under any duty to enquire whether any claims or demands on Onfem are properly made and notwithstanding that the Guarantor may dispute the validity of the same; and

(c) that the Guarantor will repay Onfem forthwith on demand all amounts so paid as aforesaid;

Provided that the liability of the Guarantor shall not exceed 16 per cent of the aggregate amount of the liabilities of Onfem under the Guarantees and provided further that the liability of the Guarantor shall cease if (i) the Guarantor has made full payments to discharge his liabilities under the guarantees given by the Guarantor to secure the indebtedness of the Condo Group or (ii) the Guarantor and/or his associates cease to be a shareholder of the Condo Group and has duly and punctually performed his obligations hereunder."

14. Both the First and Second Deeds contain a continuing security clause which reads :

"CONTINUING SECURITY

This Deed is a continuing security and shall remain in full force and effect until each of the Guarantees and the Guaranteed Indebtedness has been fully, properly and validly discharged and released and is in addition to, and independent of, any other guarantee, indemnity, mortgage, charge, pledge, lien, encumbrance, hypothecation or other security or right or remedy now or hereafter held by or available to Onfem and may be enforced notwithstanding the same or that Onfem may have omitted to claim payment from any other person liable."

15. It is as well to revisit the Order 14 principles. Rule 3 places the threshold onus on the defendant to show that there is a triable issue. The Court will test the credibility of an affidavit asserting a triable issue against the conduct of the defendant and contemporary documents. See Murjani v. Bank of India [1990] 1 HKLR 586. The test is whether what the defendant says is believable, rather than whether it is to be believed; see Ng Shou Chun v. Hung Chun San [1994] 1 HKC 155. But as Bokhary JA put it in Re Safe Rich Industries Limited, Civil Appeal No.81 of 1994, unreported, 3 November 1994 :

"The test at the summary stage is indeed as simple as whether the defendant's assertions are believable. But it must be recognized - because failure to recognise it would create a debt-dodgers' charter - that whether the defendant's assertions are believable is a question to be answered not by taking those assertions in isolation but rather by taking them in the context of so much of the background as either undisputed or beyond reasonable dispute."

16. But Order 14 is for crisp legal and factual issues. Per Bingham LJ in Crown House Engineering v. Amec Projects Ltd (1990) 6 Const. L.J. 141 at 154 :

"...Order 14 is for clear cases; that is cases in which here is no serious material factual dispute and, if a legal issue, then no more than a crisp legal question as well decided summarily as otherwise.....This is not to say.... that a defendant with no or no more than a partial defence can cheat a plaintiff of his just desserts by producing hefty affidavits and voluminous exhibits to create an illusion of complexity where none exists..."

And, per Megarry V-C in Lady Anne Tennant v. Associated Newspapers Group Ltd [1979] FRS 298 :

"A desire to investigate alleged obscurities and a hope that something will turn up on the investigation cannot, separately or together, amount to sufficient reason for refusing to enter judgment for the plaintiff. You do not get leave to defend by putting forward a case that is all surmise and Micawberism."

17. I have reproduced these dicta here, because the defendants have produced hefty affidavits and voluminous exhibits which the plaintiff would say are intended to create an illusion of complexity where none exists.

18. The plaintiff's case, put briefly, is that the terms of the Deeds are quite clear and the defendants are bound by them. They are contracts of indemnity. There is no room for implied terms. Insofar as the defendants seek to set up issues of fact those issues are irrelevant to the defendants' liability under the Deeds and in any event, by reference to contemporaneous documents they are incredible.

19. The plaintiff also argues that the defences advanced are not bona fide by reference to correspondence and other evidence which show that they have admitted liability under the Deeds.

20. The defendants' case in brief is that terms are to be implied into the contract and the plaintiff has acted in breach of them, and that the plaintiff's actions were also injurious to or inconsistent with the rights of the defendants. By such actions and in particular by extending time for repayment the plaintiff has discharged the defendants from liability under the Deeds which are contracts of guarantee rather than contracts of indemnity. Further there are "other reasons" for trial which arise out of the plaintiff's breaches of the Listing Rules of the Stock Exchange.

21. The defendants' first contention is that the Deeds contained the implied terms pleaded and that the plaintiff had acted in breach of them. It is further argued that the plaintiff's acts or omission constituted injurious conduct against he defendant and so discharged their obligations under the Deeds; that the plaintiff connived at or caused the default of the principal debtors; that the plaintiff cannot take advantage of its wrong by enforcing its rights under the Deeds, and that by the plaintiff's extending time for repayment the defendants liabilities under the Deeds have been discharged.

22. The first question relates to whether terms are to be implied into the Deeds. The requirements for an implied term were set out in B.P. Refinery (Westernport) Pty. Ltd v. President, Councillors and Ratepayers of Shire of Hastings [1978] 52 ALJR 20. Lord Simon, delivering the majority opinion in that case at page 26, said :

"Their Lordships do not think it necessary to review exhaustively the authorities on the implication of a term in a contract which the parties have not thought fit to express. In their view, for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract."

23. It is argued for the plaintiff that none of the pleaded implied terms comes within these criteria. The first term is neither necessary since the Deeds are efficacious without any need for bona fides, nor is it obvious. The second term likewise does not satisfy the first four requirements. The third term is contrary to the provision in the First Deeds that the guarantor's liability is not discharged by any time or indulgence to granted by the borrower, and is in any event inapplicable to the Second Deeds. Further there is no evidence that either Condo China or CCW were in a position to repay the loans on their due dates. The fourth term is inconsistent with the provisions in the First Deeds that the obligations are to be performed as if the guarantor were the principal debtor and not merely as surety. It cannot apply to the Second Deeds which are pure contracts of indemnity. The fifth term also contradicts the express terms referred to above. Further the third, fourth and fifth terms do not satisfy the other requirements set out in BP Refinery. I think the plaintiff's arguments on this are quite compelling as they stand. But the problem is that there is a considerable dispute as to fact, on the question of the relationship between the plaintiff and the Condo Group.

24. In brief the plaintiff's case is that its role in the Condo Group was limited while the 1st and 3rd defendants carried out a far more substantial role in its affairs. In fact it is not in dispute, or is undeniable on the documents, that the 3rd defendant was the Managing Director of the Group and Executive Director of Condo China until 30 December 1999. The 2nd defendant was the Managing Director of a subsidiary, Shanghai Jin Qiao Condo Decoration Engineering Co. Ltd until 16 September 2002; and the 3rd defendant was Executive Director of the Group until 13 January 2003. The defendants however say, through the 3rd defendant who has made the main set of affirmations, the 1st defendant having simply confirmed them, that since 1995 the real control was in the hands of the plaintiff while they simply did the actual work on the ground. They did not have financial control and the plaintiff kept them in the dark on various matters.

25. One obvious factual issue is whether the 1st and 3rd defendants were, by the time the loans were made, 16% beneficial shareholders in CCW, or whether the plaintiff through its subsidiary Metro Success Ltd, as the 3rd defendant says, held the entire shareholding in CCW. In fact the Annual Return of CCW for 1995 shows a transfer of the 1st, 2nd and 3rd defendants' remaining holdings to Metro Success Ltd. so that it held 749,999 of the 750,000 shares. There is no real explanation of this from the plaintiff's side; reliance is placed on the sale and purchase agreement but it does not explain away the Annual Returns, which indeed reproduce the same information through to 2002. There is also correspondence in the form of a request by the plaintiff in January 2003 to ascertain the beneficial interest of the 3rd defendant. One would have thought it knew what the 3rd defendant's beneficial interest was, given the terms of its affirmation evidence.

26. There are also various factual issues raised by the defendants in affirmation, regarding the respective roles of the parties and the defendants' allegations of misconduct on the part of the plaintiff. The plaintiff's argument is that these are irrelevant given the terms of the Deeds and in any event incredible on the documents. One obvious point is, if the defendants' beneficial interest was nil, why would they enter into guarantees or indemnities for 16%? So far as the allegations of secret bank accounts and secret projects are concerned the plaintiff says that there is no direct evidence that the plaintiff had anything to do with these. It appears that the 2nd defendant made admissions in respect of them. So far as alleged extraordinary expenditures are concerned the plaintiff says that they have been drawn from accounts properly audited by the plaintiff's outside auditors and they are properly explained in the documents. As to unjustified expropriation the plaintiff argues that there is no real evidence of it.

27. I have considered the evidence in detail. There is a lot of it. I think there is considerable doubt as to whether it is to be believed. Some of it may be irrelevant. But at the same time I do not think it is possible to say, as I must in order to give summary judgment, that it is all unbelievable or all irrelevant.

28. So far as the contention that the defendants have admitted liability is concerned, while there do appear to be some admissions they are in respect of specific and fairly small amounts. When it comes to general admissions the picture is much less clear and it must be remembered that the correspondence referred to was written before the defendants had legal advice.

29. If the roles of the parties were as the defendants say, this would be part of the background matrix of facts which would have to be considered by the court in deciding whether the Deeds can be interpreted in such a way as to find that they contain implied terms. It is difficult to see that they would, even if what the defendants say is ultimately accepted, but I do not think that it can be ruled out. The defendants argue that this question of the level of control and management exercised by the plaintiff is also inseparable from the question of its having performed injurious acts to the detriment of the defendants as sureties and whether or not it in some way connived at or caused the default of payment by the Condo Group. I think this also must be accepted. So there is a triable issue on this point even if it is a rather tenuous one.

30. The defendants also contend that the question whether the defendants' liabilities are those of primary debtors rather than guarantors is one which should be settled at trial. The 1st and 4th defendants in particular rely on the words of Cheung JA in JCGH Finance Co. Ltd v. Group Life Investment Ltd, CACV 221 of 2002 at paragraph 21 :

"For the purpose of a summary judgment application, it is clearly not appropriate to determine conclusively at this stage whether the 2nd defendant's obligation was in the nature of a combined guarantee and indemnity as discussed in O'Donovan and Phillips, The Modern Contract of Guarantee, 3rd Edn. pp.25-31. In any event, a clause which consists both of a guarantee and an indemnity obligation had been construed in the nature of a guarantee only : see Stadium Finance Co. Ltd. v. Helm (1965) 109 S.J. 471 where Russell L.J. observed that a clearer form must be in place if a primary obligation was intended to be imposed, bearing in mind that most people were not prepared to subject themselves to the nuisance of primary liability."

31. Mr Yuen SC also placed heavy reliance on the case of Lark International v. Chan Hin Fai Wilson & Anor, HCA 8372 of 1994 where there were also allegations of connivance between the creditor and the debtor. Though the contract provided that the guarantor's primary liability was not to be affected by indulgence given by the creditor to the debtor, Keith J held that contracts of guarantee must be construed strictly in favour of the guarantor, and it would be unlikely for a guarantor to agree to remain liable when the debt remains outstanding as a result of connivance.

32. Mr Yuen says that it is at least arguable that Deeds are guarantees and not indemnities. If there was injurious conduct on the part of the plaintiff it will serve to discharge the defendants as guarantors. It is at least arguable on the evidence that the plaintiff had overall control, and that there were unexplained extraordinary expenditure in the accounts, secret business activities, unjustified expropriation of funds from the Condo Group and other misconduct. Therefore there is a triable issue as to whether the defendants are discharged from liability under the Deeds.

33. Mr Man, for the 3rd defendant also relies on the uncertainty of the question of the parties' roles and says that this is a highly fact-sensitive issue which could only be resolved at trial. He also adverts to various specific points on the allegations of suspicious expenditures and secret bank accounts. Much of these matters involved the 2nd defendant and the plaintiff has apparently tried to dissociate itself from his actions, but nevertheless it appears that notwithstanding various admissions made by him he was later appointed as a director of another subsidiary of the plaintiff, even after default judgment had been entered against him in these proceedings. This all goes, says Mr Man, to the need for a trial to sort out the various questions of fact.

34. In addition it is argued that there is a triable issue that an agreement was reached between the plaintiff and the 3rd defendant that his liabilities, if any, under the guarantees would be limited to those incurred before 31 December 1999. There is some support for this in minutes of a financial meeting dated 22 June 2000.

35. Mr Tong SC refers to the fact that the common law principles were all clearly excluded by agreement between the parties, and argues that it really does not matter whether the First Deeds were an indemnity or a guarantee; they are perfectly clear. The giving of time was expressly excluded as a ground of discharge. In any event the Second Deeds are quite clearly on the face of them pure indemnities. So the questions of fact are simply irrelevant particularly so far as the Second Deeds are concerned. The cases referred to by the defendants on the law of guarantees and indemnities are distinguishable from the instant case.

36. Counsel on both sides addressed me on the law of guarantees and indemnities at great length. There are, it seems to me, without revisiting the many cases cited, strong arguments that the Deeds fix the primary obligation on the defendants and that they simply cannot escape liability. But we come back to the principle that Order 14 is for crisp legal questions as well decided summarily as otherwise. It seems to me that the question of whether the First Deeds were guarantees or indemnities is insufficiently crisp for decision at this stage and that it should be decided at trial. As to the Second Deeds it seems to me pretty clear that they are indemnities. It is argued that I should at least give judgment on the sums covered by them but I do not think I can given that the outstanding questions of implied terms would apply to both sets of Deeds.

37. Overall therefore it seems to me that there is a triable issue as to the roles of the parties, and various triable issues relating to the plaintiff's conduct. The issues of fact are quite complex. There are complex legal issues as to implied terms which will depend on the facts as to the roles of the parties, and as to whether the Deeds were guarantees or indemnities, which will go to the question of whether if the plaintiff's conduct is proved it would have the effect of discharging the defendants. There are serious material factual disputes and the legal questions which depend on the resolution of the factual issues are not crisp or as well decided summarily as otherwise.

38. I do not see that there can be summary judgment here. Even though it seems probable that the issues will be resolved in favour of the plaintiff I do not see that the position is clear enough as to the facts or the law to allow for it. It is not necessary to consider whether there are "other reasons for trial".

39. I have considered whether conditional leave should be given. The principles are set out in the Hong Kong Civil Procedure 2002 at paragraph 14/4/16. I refer in particular to the passage which indicates that leave to defend conditional on the full amount claimed being paid into court may be ordered "where the defence is "shadowy"...or there is little or no substance in it or the case is almost one in which summary judgment should be ordered."

40. It seems to me that the defence is shadowy. On one limb it depends on implied terms which must necessarily be a lawyers' construct, thought up after the event. The implied terms in turn depend on some rather tenuous factual assertions as to the roles of the parties. On the other limb it depends on a lot of assertions of misconduct to which there seem to be answers in the accounts. Then there is the argument on the First Deeds which is that they do not mean what they appear to say. It is certainly almost a case in which summary judgment should be ordered.

41. I therefore order that the defendants have leave to defend conditional on paying into court within 14 days the sum of $16,418,527.00. Costs (nisi) will be in the cause. Directions under Rule 6 are required so I direct that the plaintiff have 14 days from the date of payment into court to file a Reply if so advised and that thereafter the provisions of Order 25 Rule 1 be followed.