BANK OF COMMUNICATIONS COMPANY LTD v. VICTORY SEASON LTD AND OTHERS

CACV 107/2024, [2024] HKCA 1026

On Appeal From [2023] HKCFI 2815

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 107 OF 2024

(ON APPEAL FROM HCMP NO. 292 OF 2023)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court)  :

1.  Deputy High Court Judge Reyes SC (‘the Judge’)  dismissed the 1^st, 5^th and 6^th defendants’ appeal against the decision of Master Lok who ordered, inter alia, that these defendants delivered vacant possession of a mortgaged property in Stubbs Road, Hong Kong (‘the Property’)  to the plaintiff.

2.  The 1^st, 5^th and 6^th defendants lodged an appeal against the Judge’s decision.  Despite the directions given for the filing of submissions, they did not file any written submissions and are not represented by lawyers.  They did not attend today’s appeal. 

3.  By a letter dated 25 October 2024, the 5^th defendant who is the husband of the 6^th defendant informed the Court that the 5^th and 6^th defendants, together with the 1^st defendant would not proceed with the appeal as vacant possession of the Property had been delivered on 20 October 2024.  The 1^st defendant is a limited company and as such it has to be represented by a solicitor or by a person authorised by the Court.

4.  The plaintiff confirmed that vacant possession of the Property had been delivered to the buyer who bought the Property by tender.

5.  In view of the absence of the defendants today to prosecute the appeal, we will dismiss the appeal.

6.  In any event, we are of the view that the appeal has no merits.  The 1^st defendant is one of the borrowers of loan facilities granted by the plaintiff.  The 5^th and 6^th defendants are the guarantors of the loans.  They also mortgaged the Property to the plaintiff as a further security.  Two grounds of appeal are relied upon.  As to the first ground that the plaintiff has breached its duty as mortgagee by withdrawing its offer to agree on a sale of the Property to the son of the 5^th and 6^th defendants because of his failure to provide a fund proof, we agree with the Judge that the plaintiff’s demand for a fund proof from the son was reasonable in order to make sure that the son was able to carry out the purchase.  As to the other ground that the plaintiff is barred by promissory estoppel from enforcing the mortgage and guarantees against the defendants without sufficient warning, notification or consultation, we also agree with the Judge that there is no evidence that the plaintiff has made the alleged promise or representation.  On the contrary, the plaintiff made it clear that the willingness to negotiate was without prejudice to its legal rights and their enforcement.  We will also dismiss the appeal on the merits.

7.  We will order the defendants to pay the plaintiff the costs of this appeal which will be summarily assessed upon the defendants filing their objections (limited to two pages)  within 14 days to the plaintiff’s Statement of Costs dated 17 October 2024.