THE CHINA STATE BANK LTD v. KING PACIFIC INTERNATIONAL HOLDINGS LTD AND OTHERS

CACV 26/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 26 OF 2003

(ON APPEAL FROM HCA NO. 1694 OF 2001)

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(By original Writ and Order carry on)

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J U D G M E N T

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Hon Rogers VP:

1. This is an appeal from a judgment of Deputy High Court Judge Carlson given on 15 November 2002. The application before the judge was an application for summary judgment under Order 14 against the 3rd defendant who had been sued by the plaintiff in respect of liability under a guarantee given in respect of liabilities incurred by the 1st defendant. The judge below had held in favour of the plaintiff. At the conclusion of the hearing judgment was reserved which we now give.

Background

2. The claim against the 1st defendant had been for two separate amounts, namely, US$823,356.59 and HK$89,714.63. These were said to be outstanding from facilities granted by the plaintiff. Although judgment had been obtained against the 1st defendant by consent, since it was in liquidation, clearly there is unlikely to be any recovery from it.

3. The 2nd and 3rd defendants were a director and chairman respectively of the 1st defendant. They were sued as guarantors of the 1st defendant's indebtedness. The 2nd defendant did not appear at the hearing before the judge below and judgment was given against him. Again, it would appear problematic as to whether the plaintiff is likely to recover anything against the 2nd defendant.

The first facility letter

4. By letter dated 15 July 1998 from the plaintiff to the 1st defendant, which was countersigned on behalf of the 1st defendant by the 2nd and 3rd defendants, the plaintiff granted the 1st defendant general banking facilities. The relevant parts of that the facility letter, ("the first facility letter") are as follows:

"	1.	Allocation of the Facilities
	1.1	The Facilities are available by way of:-
		-	Overdraft Facility up to the extent of HKD10,000,000.00. Interest is charged at 2% per annum over the rate of deposit charged to us or over our prime rate for Hong Kong Dollars as quoted by us from time to time ('Prime Rate') or over our cost of fund, whichever is the highest (as well after as before judgment), payable monthly, currently 12% per annum, subject to fluctuation. Overdraft limit will be decreased by HKD500,000.00 every six months beginning from 25 July, 1998 until the limit reached HKD5,000,000.00.
		-	Fixed Loan of USD2,000,000.00. Interest will be charged at 2% per annum over the rate of deposit charged to us or over our cost of fund or at our prime rate for United States Dollars as quoted by us from time to time ('USD Prime Rate'), whichever is the highest (as well after as before judgment). Interest payable on the dates falling at one monthly intervals after the date of advance. Principal payable on or before the date falls on 12 months from the date of advance.
		-	Fixed Loan of USDl,000,000.00. Interest will be charged at 3% per annum over USD Prime Rate or over our cost of fund, whichever is higher (as well after as before judgment). Interest payable on the dates falling at one monthly intervals after the date of advance. Principal payable by 2 equal semi-annual instalments of USD500,000.00 each, first instalment shall be made on the date falls on six months from the date of advance.
	...
	3.	Expiry of the Facilities
		The Facilities will be subject to review on a regular basis and shall expire forthwith as and when we have given you notice of termination. Whilst it is our present intention that the Facilities should remain available to you until that date and notwithstanding any other provision of this letter, we nevertheless reserve the right at our sole and absolute discretion to increase, reduce, and/or cancel the Facilities or any part or parts thereof at any time to be effective forthwith by notice to you.
	...
	6.	Conditions Precedent
		The Facilities will be available for drawing when we have received the following documents in form and substance satisfactory to us:-
		...
		-	Guarantee for not less than USD1,000,000.00 together with accrued interest and default interest thereon and other costs and expenses referred to in the Guarantee, duly executed by Mr. Cheung Yiu Wing and Mr. Cheng Chao Ming;
	...
	11.	Handling Charges
		Handling charges of HKD20,000.00 flat shall be paid by you upon acceptance of this letter. Once paid, such handling charges shall not be refundable under any circumstances. (and thereafter annually at HKD5,000.00 or such other sum as we may notify you upon renewal of the Facilities)."

The letter of guarantee

5. Also dated 15 July 1998 was a letter of guarantee signed by both the 2nd and 3rd defendants. The material parts of that guarantee, which is the subject of this action, are as follows (with the parties identified in italics):

"1. In consideration of the plaintiff ... granting or continuing to grant to the 1st defendant ... time, credit or accommodation or any other kind of banking facilities including but not limited to trust receipt facilities, and/or forbearing to sue and/or continuing the existing account(s) with the 1st defendant, for so long as the plaintiff shall think fit, I/We are hereby jointly and severally guarantee to the plaintiff the due payment and discharge of and undertake on demand in writing of the plaintiff to pay to the plaintiff and discharge

(a)	all sums of money and liabilities advanced or paid by the plaintiff to or for or on account of the 1st defendant or incurred by the 1st defendant to the plaintiff and
(b)	all other sums of money and liabilities which now or shall at any time be due or owing to incurred or payable and unpaid by the 1st defendant to the plaintiff or for which the 1st defendant may be or become liable to the plaintiff anywhere

in either case upon any current or other banking account or upon any discount account or otherwise and whether alone or jointly with any person or persons and whether actually or contingently and in whatever name, style or form and whether as principal or surety or otherwise including or together with interest, commission and other charges including legal costs.... Provided nevertheless that the total amount recoverable from me/us hereunder shall not exceed the sum of USD 1,000,000....

2. I/we expressly agree that the plaintiff shall have full discretionary power, without any assent from or notice to me/us, and without in any way affecting my/are liability under this Guarantee, at any time to determine, enlarge or vary any credit, accommodation or facility to the 1st defendant, and to hold over, vary, exchange, abstain from perfecting, renew, or give up, in whole or in part and from time to time, any bills, notes, mortgages, charges, liens or other securities received or to be received from or for or on behalf of the 1st defendant, either alone or jointly with any other person or persons, or from any other person or persons or bearing the name of the 1st defendant, and without my/our consent or knowledge in any way to grant time or indulgence to, or compound or make any arrangements with the 1st defendant or any person or persons liable on any such bills, notes, mortgages, charges, liens or other securities, or any person liable jointly with or as surety for the 1st defendant, or any other person or persons.

......

5. This guarantee shall be in addition to and shall not prejudice or affect and shall not be in any way prejudiced or affected by any collateral or other security including but not limited to mortgages, debentures, charges, guarantees and liens now or hereafter held or judgment or order obtained by the plaintiff for all or any part of the moneys hereby guaranteed nor shall such collateral or other security, judgment or order or any lien to which the plaintiff may be otherwise entitled or the liability of any person or persons not parties hereto for all or any part of the moneys hereby secured be in anywise [sic] prejudiced or affected by this guarantee. In particular it shall not be necessary for the plaintiff to resort to or seek to enforce any security or personal guarantee or liability whether of the 1st defendant or any other person or persons before claiming payment from me/us. The plaintiff shall have full power at the plaintiff's discretion to give time for payment or to make any other arrangements with any such person or persons without prejudice to this guarantee or any liability hereunder. All moneys received by the plaintiff from me/us or the 1st defendant or any person or persons liable to pay the same may be applied by the plaintiff to my account or item of account or to any transaction to which the same may be applicable.

.....

9. This guarantee shall be a continuing security of the plaintiff, and shall not be determined except at the expiration of three calendar months from the date when written notice of my/our intention so to do shall have been received by the plaintiff from me/us and in the event of death of me or any one or all of us the liability of my/our personal representatives and of my/our estate for the amount due from the 1st defendant shall continue until the expiration of three calendar months' notice in writing of the intention of my/our personal representatives to determine this guarantee shall have been received by the plaintiff from my/our personal representatives.

......

13. I/We agree that any statement or demand signed by any officer or person duly authorized by the plaintiff shall be conclusive evidence against me/us of the amount for the time being due to the plaintiff from the 1st defendant in any action or other proceeding brought against me/us upon this Guarantee."

The second facility letter

6. As recorded by the judge, by 2 February 2000 the 1st defendant's indebtedness to the plaintiff stood at US$2,822,833.34 and HK$8,645,001.92. Due to the fact that the 1st defendant was experiencing financial difficulties, it was obliged to seek further assistance from the plaintiff. This was forthcoming in the form of a revised facility letter ("the second facility letter"). I set out the terms of that letter below because it forms part of the argument on behalf of the 3rd defendant, to which I shall come, that this was a new facility. The terms of clause 1 were as follows:

"	1.	Allocation of the Facilities
	1.1	The Facilities are available by way of:-
		-	Overdraft Facility up to the extent of HKD8,000,000.00. Interest is charged at 2% per annum over the rate of deposit charged to us or over our prime rate for Hong Kong Dollars as quoted by us from time to time (the 'Prime Rate') or over the overnight Hong Kong Inter Bank Offered Rate quoted by us, whichever is higher (as well after as before judgment), currently 10.75% per annum, subject to fluctuation. Overdraft limit will be decreased by HKD500,000.00 every six months from 25 July 2000 until the limit reduced to HKD5,000,000.00:
		-	Fixed Loan for USD2,000,000.00.
			- Interest is charged at 2% per annum over the rate of deposit charged to us or over our cost of fund or at our prime rate for United States Dollars as quoted by us from time to time ('USD Prime Rate'), whichever is the higher (as well after as before judgment), currently 8.75% per annum, subject to fluctuation.
			- Interest payable on 17th day of each calendar month.
			- Principal is revised to be payable on or before 17 January 2001.
			- Other terms and Conditions remain unchanged, please refer to the Undertaking for Repayment of Loan dated 15 July 1998.
		-	Fixed Loan of USDl,000,000.00. Outstanding balance is USD800,000.00.
			- Interest is charged at 3% per annum over USD Prime Rate or over our cost of fund, whichever is the higher (as well after as before judgment), currently 11.75% per annum, subject to fluctuation.
			- Interest payable on 17th day of each calendar month.
			- Outstanding principal is revised to be payable by 5 instalments in the following manner:
			- the 1st instalment for USD100,000.00 payable on 17 February 2000.
			- the 2nd instalment for USD100,000.00 payable on 17 April 2000.
			- the 3rd instalment for USD200,000.00 payable on 17 July 2000.
			- the 4th instalment for USD200,000.00 payable on 17 October 2000.
			- the 5th instalment for USD200,000.00 payable on 17 January 2001.
			- Other terms and Conditions remain unchanged, please refer to the Undertaking for Repayment of Loan dated 15 July 1998."

7. In my view, the liability of the 3rd defendant under the guarantee is clear. I see no basis whatever for avoiding the unambiguous words of the guarantee. Nevertheless, Ms Eu SC, on behalf of the 3rd defendant took up the same, or a very similar, argument to that which had been argued by other counsel in the court below. In order to understand the argument on behalf of the 3rd defendant, which I have to say I found uncharacteristically abstruse, it is necessary to refer to some other matters.

8. It was argued by Ms Eu that not only were the terms of the two facility letters different but that the second facility letter constituted a totally new facility. In my view, however, the second facility letter merely represented a continuation of the facilities. Such a continuation had, indeed, been envisaged in the original facility letter, see for example clause 11 of the first facility letter. So, although the amount of the overdraft was given in the second facility letter as HK$8 million, it would be noted that in accordance with the terms of the first facility letter, the limit of the overdraft would, in any event, have been reduced to that amount by 25 July 2000. Thus there is no difference in the overdraft limit since, in the first facility letter the overdraft limit was to be reduced by HK$0.5 million every six months. The fact that in the first facility letter one of the alternatives for the interest rate for the overdraft had been said to be 2 percent over the cost of funds and in the second facility letter the final alternative had been expressed in terms of 2 percent over Hong Kong Interbank Offer Rate (commonly referred to as HIBOR) is simply a different form of words to express the same thing. Likewise in respect of the loan of US$1 million, that too was a reducing amount under the terms of the first facility letter. Hence, in the second facility letter the amount of the overdraft is said to be HK$8 million. But that is the figure as of 25 July 2000. It might also be noted that the accounts remained the same after the second facility letter.

9. Likewise Ms Eu attempted with the help of a chart headed "Summary of differences between the two facility letters." to argue that other terms of the two facility letters were different. However, the more one looked at the alleged differences, the more it became obvious that the second facility letter was a continuation of the facilities in the first facility letter. Some point was attempted to be made in respect of the differences in the handling charges which were contained in clause 11 of the first facility letter and clause 5 of the second facility letter. However, again, it is clear that the first facility letter envisaged the renewal of the facilities since the concluding words of clause 11 were "or such other sum as we may notify you upon renewal of the Facilities".

10. The second facility letter, dated 24 February 2000 required, amongst other things, a signed copy of the duplicate of the letter together with "Board Resolutions (if applicable) indicating your acceptance of the Facilities on terms and conditions set out in this letter". It is by no means clear what was meant by the words "if applicable". Nevertheless, a board resolution was provided. That is, however, was the subject of particular criticism by the 3rd defendant since, although the resolution named the 3rd defendant as the chairman of the meeting, the signature was clearly not that of the 3rd defendant. There is no effective dispute in this case that the signature was that of the 2nd defendant.

11. The 3rd defendant seeks to build on this because it was at about this time that a major dispute erupted between the 2nd and 3rd defendants. The outcome of that dispute was that the 3rd defendant lost his position as chairman of the company, although he retained his position as a director. It is the 3rd defendant's case that those disputes between the 2nd and 3rd defendants and their respective supporters received sufficient publicity that the matter should have come to the attention of the plaintiff. Putting these matters together Ms Eu argued as follows.

12. The plaintiff should have been aware that the 1st defendant was in corporate disarray. As a consequence it should have consulted the 3rd defendant to determine what was the true position with regard to the 1st defendant's affairs. Had it done so it would not have granted any further facilities to the 1st defendant and the facilities would have been called in by the plaintiff or, as an alternative scenario, the 3rd defendant would have been in a position to discharge the 1st defendant's liability to the plaintiff and, under subrogation, seek to recover the amount involved from the 1st defendant. Instead, the 1st defendant was granted the facility of the second facility letter: that was a new facility. Furthermore, in granting the 1st defendant the new facility, the plaintiff failed to take heed of the fact that the minute of the board meeting referred to above was purportedly one where the 3rd defendant had chaired the meeting. Two points are made here. In the first place the 3rd defendant was no longer the chairman of the 1st defendant and in the second place the signature was clearly that of the 2nd defendant and not the 3rd defendant. Following on that, it is said that the granting of the facility enabled the 1st defendant to continue trading and as a consequence its position deteriorated dramatically: the 1st defendant's financial position went from one where it was at least balance sheet solvent to one of clear insolvency and liquidation.

13. It is pertinent to note that it was not sought to be argued that the second facility constituted an event or circumstance that, of itself, discharged the 3rd defendant of his obligations under the guarantee. Rather, it was sought to argue that there was a combination of some sort of duty of care that had arisen.

14. To found her case Ms Eu relied upon the proposition that the plaintiff had done some positive act which prevented it from recovering against the 3rd defendant under the guarantee. The foundation of the argument was based on a passage from the speech of Lord Kingsdown in the case of Black v Ottoman Bank [1862] XV Moore 472 at p.483:

"From these cases it is clear that, upon the point now in dispute, the rule at law and in equity is the same, that the mere passive inactivity of the person to whom the guarantee is given, his neglect to call the principal debtor to account in reasonable time, and to enforce payment against him, does not discharge the surety; that there must be some positive act done by him to the prejudice of the surety, such degree of negligence as, in the language of Vice-Chancellor Wood in Dawson v. Lawes, 'to imply connivance and amount to fraud.'"

15. The reference to fraud as used by Wood VC was taken up by Denman J, as he then had been, in the case of The Mayor, Aldermen, and Citizens of Durham v Fowler and another [1889] 22 QBD 394 when he said at page 420:

"Here, again, the language must be understood to mean at least connivance in acts contemplating the probability of a default occasion, and so being guilty of a fraud that the surety is, in the sense of assisting an act which must be detrimental to them."

16. Relying on a statement by Bokhary JA, as he then was, in Bank of Credit and Commerce Hong Kong Limited (in liquidation) v Quadrutec Hotel Management and Development Limited and others [1996] 4 HKC 316 at page 325A:

"Now, the law could never develop if a suggested defence were summarily shut out simply because it cannot be brought within the established instances. So if it has the potential for developing into such an instance, it should be left for consideration at a full trial."

Ms Eu argued that leave to defend should be given because there was, what at the very least was, an embryonic defence. Despite the persuasive advocacy, I regret that I do not see any such defence in this instance.

17. Even if it be assumed that the plaintiff would have noticed that the 1st defendant was in corporate disarray I do not see that it was under any duty to consult the 3rd defendant. The points sought to be made in relation to the board resolution provided in 2000 appear to me to be irrelevant. The fact is that the 1st defendant did not dispute liability and indeed judgment has been entered against the 1st defendant. Whatever duty of care a creditor may owe to a guarantor in relation to obtaining true market value when dealing with assets of a debtor, it is fundamental that the creditor does not have to take any steps as against the debtor. All that can be said in this case is that the plaintiff continued the bank facilities which had previously been there. When stripped to its basics the 3rd defendant's complaint is simply that he, himself, did not step in at a time when he says that he was at loggerheads with the 2nd defendant and seek to discharge the liability of the 1st defendant and recoup himself from assets which he says were there. Whether there were assets of the 1st defendant, which were at the time realisable, does not matter. There can only be suspicion, however, that what was represented as book value was not realisable.

18. In those circumstances I would dismiss this appeal and make an order nisi of costs in favour of the plaintiff.

Hon Le Pichon JA:

19. I agree.