CACV000099/1986
IN THE COURT OF APPEAL
1986, No. 99
(Civil)
BETWEEN
HANG LUNG BANK LIMITED
Plaintiff
and
FU HOK VEN
1st Defendant
YUNG SIU SUEN SUSANNA
2nd Defendant
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Coram: Cons; V.-P. & Silke, J.A.
Date of hearing: 28th October, 1986.
Date of delivery of judgment: 28th October, 1986.
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JUDGMENT
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Cone, V.-P. delivered the judgment of the Court:
1. This is an appeal against the decision of Jones J. who gave judgment against the two Defendants upon an Order 14 summons. That against the 1st Defendant was in the sum of $170,000, and that against 2nd Defendant, $70,000. These were the respective amounts of guarantees which the Defendants had signed in support of facilities granted by the Plaintiff to the Very Nice Watch Case Manufactory Ltd. of which the Defendants are both directors. The guarantees are expressed to be -
"
in consideration of your (that is the Plaintiff) from time to time making advances to or coming under liabilities or discounting bills for or otherwise giving credit or granting banking facilities or time to or on account of the Very Nice Watch Case Manufactory Ltd.
The Defendants covenanted that they-
"
will pay you (again the Plaintiff) on demand and hereby guarantees the repayment due on demand of all sums of money which now are or shall hereafter become due to you from the Principal either alone or in conjunction with any other corporation or corporations person or persons and whether as Principal or Surety and whether upon account current or other banking account or accounts or otherwise ...."
2. There follows a long list of specific circumstances which would give rise to liability on the part of the Defendants. Other later provisions in the guarantees were mentioned in the court below but Mr. Neoh, for the Plaintiff, no longer relies on them.
3. The liability for which the Defendants are sought to be made guarantors is a judgment debt obtained by the Plaintiff on a cause of action independent of the company's direct dealings with the Plaintiff. The Plaintiff had in fact become, by discounting them for a third party, the holder in due course of cheques drawn by the company on another bank. The cheques were dishonoured on presentation.
4. The judge below, after referring to the covenant we have just mentioned, said -
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I am quite satisfied that liability attaches to the defendants for the debts incurred to the plaintiff as a result of the discounted cheques for the words are plain and obvious."
5. With every respect to him, taking each guarantee as a whole, we do not think the words to be so plain and obvious, although it may later be found that the true construction is indeed as suggested by Mr. Neoh, on which point we deliberately express no opinion. In our view however, it is a matter which merits argument upon full trial.
6. It is therefore not necessary to deal with the other two lines of defence which are put forward, and in the circumstances we think it better to say nothing.
7. We therefore allow the appeal, set aside the judgment below and give unconditional leave to defend.
(D. Cons)
Vice-President
(William Silke)
Justice of Appeal
Representation:
Fu Hok Ven and Miss Yung Siu Suen, Susanna Appellants/Defendants in person
Anthony Neoh (M/s Lo & Lo) for Respondent/Plaintiff