BANK OF CHINA (HONG KONG) LTD v. EASARICH LTD AND OTHERS

HCA3597/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.3597 OF 2002

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J U D G M E N T

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1. This appeal from the learned master below on the Order 14 summary judgment entered in favour of the plaintiff against the 3rd defendant must be dismissed, with costs to the plaintiff, to be taxed if not agreed.

2. The claim of the plaintiff bank against the 3rd defendant arose out of the outstanding debts owed by the 1st defendant company to the plaintiff's two previous merging banks called South Sea Bank and Sin Hua Bank.

3. The two merging banks extended various banking facilities to the 1st defendant. The 2nd defendant was the 90 per cent shareholders of the company and the 3rd defendant held 10 per cent of the shares.

4. The aforesaid two shareholders signed five guarantees to the banking facilities granted to the 1st defendant between 11 March 1997 and 22 October 1999.

5. The 3rd defendant put forward a case that he did not run the company, the company was mainly run by the 2nd defendant. He had complete trust on the 2nd defendant until the 2nd defendant disappeared and the 1st defendant ceased its business. In other words, I must say this : the 3rd defendant does not consider that he should bear the responsibility for trusting the 2nd defendant, and he now turns around and makes various allegations against the bank.

6. The 3rd defendant's original defence raised one question and that is : whether he was misled or otherwise had mistaken that the guarantee would only guarantee the 10 per cent of the indebtedness of the 1st defendant. He did not raise this point in his written submission anymore. That argument cannot hold water since the 3rd defendant is conversant in English and the guarantee clearly stated that it is a guarantee in respect of all the indebtedness of the 1st defendant.

7. The main defence put forward by the 3rd defendant is this : since the disappearance of the 2nd defendant and the cessation of business of the 1st defendant, he has no way of knowing whether the amount now owed to the bank is correct or not. He blamed the plaintiff and the plaintiff's solicitors for not giving him the supporting documents.

8. As I have said earlier, if he trusted the 2nd defendant but the 2nd defendant had disappeared, then the only recourse he had in order to discover the indebtedness of the 1st defendant was against the 2nd defendant and the 1st defendant. He cannot turn around and say the bank owed him a duty to give him all the supporting documents when he was a shareholder of the 1st defendant company himself.

9. The bank, by its action against the 1st and the 2nd defendants, has clearly stated the indebtedness of the 1st defendant, albeit originally, the amounts was slightly incorrect. The plaintiff amended the Statement of Claim and amended the order obtained against the 1st and 2nd defendants in default. It now claims by way of summary judgment against the 3rd defendant.

10. All that the plaintiff is required to do, according to the rules of the High Court, is to put in an affidavit and state clearly the amount due and owing from the 1st defendant to the bank. Accordingly the affirmant exhibited the full statements of account in pages 73 to 79 of the exhibit bundle to the affirmation of Cheung Kwok Leung.

11. There are also other documents exhibited. It is not open to the 3rd defendant to say that : "You must satisfy me by giving me all the supporting vouchers and documents of the bank in order to establish the indebtedness."

12. In the words of Meggary V-C (as he then was) in the case of Lady Anne Tennant v. Associated Newspaper Group Limited [1979] F.S.R.298, cited in the Hong Kong White Book 2004, paragraph 14/4/3, he said :

"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."

This is exactly what the 3rd defendant is now trying to do.

13. I fully sympathise the position of the 3rd defendant. He was left alone to hold the fortress, but he must remember that it all originated from his so-called trust on the 2nd defendant and he must bear responsibility for that.

14. The guarantee stated clearly that judgment entered against the 1st defendant will be conclusive evidence of the amount due and owing to the bank. The Statement of Claim, as I have said, has been provided to the plaintiff, showing the particulars of the outstanding indebtedness guaranteed, and consequently, the 3rd defendant is precluded from disputing them, according to the "conclusive evidence" clause in the guarantee.

15. In the end, the 3rd defendant is the one who bears the burden of showing an arguable defence and in so doing, he must condescend upon particulars. I am afraid he has fulfilled neither of these requirements. There is no evidence to suggest that the plaintiff's accounts are inaccurate. Accordingly, as I have said before, this appeal must be dismissed, with costs to the plaintiff, to be taxed if not agreed.