TONSIN FINANCIAL HOLDINGS LTD v. YAU WAI MING

HCA 1794/2024

[2025] HKCFI 5778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1794 OF 2024

_______________________

BETWEEN

(BY ORIGINAL ACTION)

AND BETWEEN

(BY COUNTERCLAIM)

______________________

_________________________________

D E C I S I O N

_________________________________

1.  This is the application of Tonsin Financial Holdings Limited (“P”) by summons dated 5 June 2025 (“Summons”) for

(1)  summary judgment against Yau Wai Ming (“D”) for the sum of US $18 million and interest as specified in the Summons;

(2)  an order that D’s counterclaim be struck out; and

(3)  leave to amend the Statement of Claim (“SOC”) as per the draft SOC.

Factual background and chronology

2.  P is a company controlled by Song Jianbo (“Mr Song”), a prominent business magnate with established businesses in Hong Kong and the PRC and with substantial interests in the Nanshan Group Co Ltd (the “Nanshan Group”), a large and reputable conglomerate with assets exceeding several tens of billions of RMB.

3.  D is also a businessman engaging in business ventures in the PRC covering real estate, electrical manufacturing, securities trading, agricultural materials, petrochemical and recycling sectors.

4.  In this Decision, the “Hao Tian Group” relates to a private BVI company known as Hao Tian Group Holdings Limited incorporated on 23 July 2010, owned and controlled by D’s former wife Madam Li Shao Yu (“Madam Li”). She divorced D in 2010 after 20 years of marriage. The divorce was amicable and pursuant to Madam Li’s request, D maintained the title of “Chairman” and “Founder” of the “Hao Tian Group” for public relations purposes.

5.  The Hao Tian Listed Group includes Hao Tian International Construction Investment Group Limited (“Hao Tian International”) a company listed on the Hong Kong Stock Exchange in 2015 as well as ACESO[1], also a listed company. Hao Tian Credit Company Limited (“Hao Tian Credit”) and True Well Limited (“True Well”) are wholly-owned subsidiaries of Hao Tian International.

6.  Hao Tian BVI was a substantial shareholder of ACESO prior to 25 June 2013[2].

7.  D’s evidence is that he is not involved in the business and affairs of the Hao Tian Listed Group which Madam Li owns and controls. P disputes this.

8.  It is common ground that D was at all material times extremely keen to build a good business relationship with P.

9.  D’s brother, Yau Wai Lung (“Brother”), was the sole director and shareholder of Bright Sino Investment Development Limited (“Bright Sino”) and Success Way Investment Development Limited (“Success Way”) (collectively, “Brother’s Companies”). According to D, Brother introduced D to Mr Song in 2019. P disputes this.

10.  D had never held any interest or stake in Brother’s Companies nor did he have any knowledge of their business operations and financial position.

11.  Pursuant to an agreement made on 15 June 2021 between (1) P and (2) China Top Grade Wealth Management Co., Limited (“Top Grade”) and Hundred Gain International Holding Limited (“Hundred Gain”) referred to in the pleadings as the “Original Loan Agreement[3]”, P advanced US $9 million to each of Top Grade and Hundred Gain. There is nothing in P’s evidence that sheds light on the terms of the Original Loan Agreement. Those terms remain unknown.

12.  D’s pleaded case[4] is that Top Grade and Hundred Gain are corporate vehicles which P controls. However, P denies that Mr Song and the Nanshan Group had any shareholding interest in them[5] or that Mr Song held any position in them.

13.  Within 9 days of the Original Loan Agreement, on 24 June 2021, each of the Top Grade and Hundred Gain used the US $9 million loan to acquire account receivables (“Receivables”) from Hao Tian Credit.

14.  On 5 July 2021, Top Grade and Hundred Gain assigned their respective interests in the Receivables (respectively, “Top Grade Receivables” and “Hundred Gain Receivables”) (the “2021 Assignments of Receivables”) to Brother’s Companies respectively for the same consideration of US $9 million each (collectively, US $18 million constituting the “Consideration”) but only payable within 12 months with interest at 7% per annum.

15.  Brother died in early 2022. With the passing of their sole shareholder and director, Brother’s Companies would inevitably become defunct. Thus, it was anticipated that Brother’s Companies would not be able to pay the outstanding consideration by 5 July 2022, the due date.

16.  A number of events then took place on 22 June 2022:

(i)  Top Grade and Hundred Gain assigned their respective rights to the Consideration owed by Brother’s Companies for the Receivables to P (the “2022 Assignments”).

(ii)  Each of Top Grade and Hundred Gain unilaterally[6] served an extension notice (the “1^st Extension Notice”) on Bright Sino and Success Way (as the case may be), D and Mr Song, inter alia, extending the date of settlement of the Consideration from 5 July 2022 to 23 June 2023.

(iii)  P as creditor, D as the 1^st Guarantor and Mr Song as the 2^nd Guarantor executed the 2022 Guarantee that, inter alia, recited

(a)  the 2022 Assignments;

(b)  the issuance on 22 June 2022[7] by Nanshan Capital Holdings Limited (“Nanshan Capital”) of 7% secured bonds with maturity date of 23 June 2023 (the “2022 Bonds”) and on which date True Well had already subscribed to and held[8] USD 45 million of the 2022 Bonds;

(c)  Brother is[9] the sole shareholder and sole director of Brother’s Companies;

(d)  The 1^st Guarantor (D) and the 2^nd Guarantor (Mr Song) agreed to guarantee the timely performance by Bright Sino and Success Way of their respective payment obligations in respect of the Consideration.

17.  Under Clause 2.1 of the 2022 Guarantee, if Nanshan Capital fulfils its payment obligations under the 2022 Bonds, D guaranteed payment of Brother’s Companies’ obligations to pay the Consideration with interest and undertook upon request to perform those obligations.

18.  Under Clause 2.2, if Nanshan Capital fails to perform fully its payment obligations in respect of the 2022 Bonds, Mr Song guaranteed payment of the Consideration to P and undertook upon request to perform those obligations.

19.  Clause 2.4 further provided that if Nanshan Capital fails to perform its payment obligations in respect of the 2022 Bonds, D’s guarantee obligations “shall be automatically discharged” and P agreed that D’s guarantee obligations under the 2022 Deed shall be borne by Mr Song.

20.  Brother’s Companies were dissolved on 4 May 2023[10].

21.  Sometime in June 2023, True Well contemplated subscribing to bonds to be issued by Hong Kong Nanshan Development Limited (the “2023 Bonds”) in the principal amount of HK$351 million[11].

22.  A number of events then took place on 12 June 2023:

(i)  Anticipating that Bright Sino would not be able to pay its share of the Consideration by 23 June 2023, P served a 2^nd extension notice on 12 June 2023 on Bright Sino[12], Mr Song and D. It extended the settlement date to 13 June 2024, with interest on its share of the Consideration at 7% per annum until 14 June 2023 and 7.5% from 15 June 2023 until payment (the “2^nd Extension Notice”).

(ii)  Success Way was in a similar situation and by the 2^nd Extension Notice also dated 12 June 2023, P extended the repayment date as to US $5.2 million to 5 July 2023 and as to US $3.8 million to 13 June 2024.

(iii)  P, D and Mr Song executed a Deed of Guarantee (the “2023 Guarantee”). The recitals made reference, inter alia to the 2022 Assignments, that Nanshan Development shall issue Bonds (described in §21) and that True Well had subscribed or shall subscribe for HK $351 million of such Bonds.

23.  The 2023 Guarantee tracks the provisions in the 2022 Guarantee save in the following respects:

(i)  The bonds to which they relate are 7.5% secured bonds to be issued by Nanshan Development in tranches before the end of July 2023. Recital (D) referred to True Well having already subscribed for or shall subscribe for HK$351 million of the 2023 Bonds.

(ii)  By Clause 2, P agreed to waive all guarantee liabilities of the Guarantor[13] under the 2022 Guarantee upon Nanshan Capital performing its payment obligations in respect of the 2022 Bonds.

24.  Under Clauses 3 and 4, D and Mr Song respectively assumed guarantee obligations that replicate those contained in the 2022 Guarantee.

25.  Nanshan Capital duly redeemed the 2022 Bonds at maturity.

26.  Nanshan Development issued the 1^st and 2^nd tranches of the 2023 Bonds on 15 June 2023 and 3 July 2023 with maturity dates of 13 June 2024 and 1 July 2024 respectively, both bearing 7.5% interest.

27.  The 2023 Bonds were duly paid at maturity.

28.  Brother’s Companies defaulted on their respective obligations under the 2021 Assignments of Receivables to pay the Consideration.

29.  On 10 July 2024, P’s solicitors demanded payment of the Consideration from D under Clause 3 of the 2023 Guarantee but without success. P then commenced these proceedings and issued the Summons seeking summary judgment.

Legal principles

30.  The applicable principles are well established. The principles set out in §§19.1 and 19.2 of P’s skeleton which are derived from the annotations in Hong Kong Civil Procedure 2025 at §§14/4/9 and 14/4/9A are not disputed:

(1)  The defendant must show that there are triable issues. The test at the summary stage is whether the defendant’s assertions are believable. On the other hand, the Court must not embark on a mini trial on affidavits.

(2)  The defendant’s affidavit must condescend upon particulars. The Court will not take assertions in an affidavit’s face value but will test it against matters such as contemporaneous documents. The Court will also consider the inherent probability of the defence. If the defendant’s evidence is incredible in any material respect, it cannot be said there is a fair or reasonable probability he has a bona fide defence, and judgment will be given.

31.  In Ju Yan Di Emperory Genesisy v Yau Wai Han [2015] 1 HKLRD 822, the Court of Appeal emphasised (at §14) that it does not mean that once the plaintiff invokes the summary judgment application and irrespective of the strength of his case, the defendant bears all the burden of showing that there are triable issues in the case. This is because the starting point in a summary judgment application is that it should only be invoked when there is no defence to the claim. This means that the plaintiff must in the first place demonstrate that the defendant has indeed no defence.

32.  That approach is consistent with that adopted by the Court of Appeal in Billion Silver Development Limited v All Wide Investments Limited [2000] 2 HKC 262. In that case, the plaintiff elected to seek summary judgment in respect of one of four causes of action pleaded. The judge held that the defence put forward was shadowy but also acknowledged that the defendant may have sown ‘seeds of suspicion’ in relation to the plaintiff’s case and some of those matters remained ‘in the realm of suspicion and speculation’. While he gave leave to defend, the judge imposed a condition. In allowing the appeal, Mayo JA stated (at 266D-E) that:

“If he had suspicions concerning the plaintiff’s case, this was a matter which he could not leave unresolved. The correct course for him to adopt was to give unconditional leave to defend so that all of these matters could be ventilated at the trial.”

33.  Ribeiro J (as he then was) explained (at 268C-D) that

“The importance of there being doubts or suspicion as to the validity of the plaintiff’s case is that such doubts detract from the plaintiff’s right to summary judgment. It was not to the point to dismiss them on the basis that they did not improve the quality of the defence and ‘raise it’ beyond the category of ‘shadowy’. If possibly genuine weaknesses were exposed in the plaintiff’s case, this casts doubt on the plaintiff’s right to invoke the summary procedure in the first place.”

34.  The issue was framed as one of principle, namely: as to whether leave to defend which would otherwise be made conditional should still be made conditional when there are doubts about the plaintiff’s case: at 268I after citing Extraktionstechnik Gesellschaft Für Anlagenbau MbH v Oskar (1984) 128 SJ 417.

Overview

35.  Mr Jason Yu and Ms Sharon Yuen, counsel for P, in seeking summary judgment focused on the present transaction, namely, the underlying loan arising from the 2022 Assignments whereby P acquired the right to be paid the Consideration by Brother’s Companies. Each of the 2022 Assignments is a deed which means it can be executed on its own and stands alone. It was not subject to any condition precedent and has no reference to the Original Loan Agreement.

36.  P’s claim is premised on the 2022 Assignments under which P is entitled to the Consideration payable by Brother’s Companies and guaranteed by D under the 2022 and 2023 Guarantees (collectively, the “Guarantees”). Unless otherwise stated, the Top Grade chain of documents on which P relies, also applies to the Hundred Gain chain, the latter being the mirror image of the Top Grade chain.

37.  P relies on the following documents:

(i)  the 2022 Assignment dated 22 June 2022 whereby Top Grade assigned to P the right to receive the Consideration payable by Bright Sino on 5 July 2022[14] for the Top Grade Receivables which Top Grade had assigned to Bright Sino on 5 July 2021;

(ii)  a Warning Letter dated 12 June 2023 addressed to D which referred to the 2023 Guarantee D agreed to enter into with P on or around 12 June 2023, advising D, inter alia, to seek independent legal advice before providing the 2023 Guarantee. D acknowledged receipt of the Warning Letter, confirming 8 matters set out under (a) to (h)[15] in the page that preceded the signature page, the entire document having been drafted by P’s solicitors;

(iii)  the 2023 Guarantee under which D’s guarantee only arises if the 2023 Bonds are fully redeemed (clause 3.1); in the event of the Issuer defaulting on the 2023 Bonds, D’s guarantee obligations under the 2023 Guarantee “shall be automatically discharged”[16] (clause 3.4); and D representing and warranting to P that his obligations under the 2023 Guarantee constitute legal, valid and binding obligations (clause 4.1); and

(iv)  the 2^nd Extension Notice dated 12 June 2023[17] further extending the settlement date from 23 June 2023 to 13 June 2024.

38.  P also relies on D’s signature, confirmation and representations in the Warning Letter and the 2023 Guarantee as giving rise to contractual estoppel.

39.  P submits that the documents show quite conclusively that the transaction was negotiated by lawyers on behalf of the Hao Tian Listed Group but the comments and proposed amendments made were for the benefit of D.

40.  Mr Anson Wong SC, Mr Jeffrey Li and Mr Calvin Ng, counsel for D, submit that D’s defence is that he signed the 2022 Guarantee in reliance on oral representations made to him by Mr Song in a telephone call in June 2022. D’s case is that Mr Song informed him that the Brother’s Companies were indebted to entities affiliated with the Nanshan Group totalling US $18 million (the “Debts”) that were effectively irrecoverable.

41.  During the call, Mr Song represented that the stakeholders of the Nanshan Group required evidence that active steps were being taken to preserve the recoverability of the Debts thereby rendering it procedurally easier for the Debts to be gradually written off over time (the “Write-off Arrangement”). In order to satisfy such internal requirements, Mr Song requested D to assist by signing documents, emphasising that such documents were for administrative purposes only to demonstrate that management had taken formal steps in relation to the Debts and that they would not be enforced and that he would ensure that no enforcement action would be taken and would indemnify D. D was told that the required “paperwork” would be drafted for his signature. Mr Song further represented that D’s cooperation in this administrative matter would mark the beginning of a long-term business collaboration with D (the “Representations”).

42.  A few days later, a representative of Mr Song’s notified D that documentation requiring his signature was ready and that he could attend P’s office for execution. When D attended P’s office alone as requested, the documentation was presented to him with adhesive markers indicating the places where his signature was required. On the faith of the Representations, D (who has minimal understanding of the English language) signed the documents presented to him without reading them or seeking to understand their legal effect. A Mr Cheung, Mr Song’s representative, witnessed D’s signature at P’s office.

43.  The documentation D signed on that occasion would have included the 1^st Extension Notice, the 2022 Warning Letter and the 2022 Guarantee.

44.  Thereafter, Mr Song expressed his gratitude to D and reiterated the Representations during their subsequent meetings and gatherings.

45.  In June 2023, Mr Song contacted D again. At a meeting on a yacht, Mr Song requested D to assist in “extending the paperwork” by a further set of documents for another year. He assured D that the internal write-off process was ongoing and repeated the Representations.

46.  Based on Mr Song’s reassurances, D signed the documents delivered to his office (including the 2023 Guarantee) without questioning their contents.

47.  D’s evidence[18] is that contrary to the claim of P and Mr Song, D received no legal advice about the 2022 Guarantee or the related documents. There was no lawyer present to explain their legal effect. Nor did D receive any of the documents before attending P’s office to sign them.

48.  Mr Song’s 2^nd affirmation of 7 October 2025 (“Song 2^nd”) filed in response to D 1^st gives an entirely different account of the execution meeting based on information given to him by a former employee[19] to the effect that it took place at D’s office and the principal place of business of Hao Tian International in the presence of P’s lawyers and others.

49.  As regards the documentation, P relies on the edits made by Jovey Chan[20] to the draft of the 2022 Guarantee (which must mean that she had been provided with a draft). On 9 June 2023, the draft 2023 Guarantee was provided to Gavin Kwai[21], Group Legal Counsel of Hao Tian International’s parent company.

50.  However, D’s evidence is that the officers of Hao Tian Listed Group never sent him any documents nor gave him any explanation or advice and that they were acting in that capacity as senior employees of Hao Tian Listed Group rather than as his personal advisers. Had they been advising D, it is inconceivable that they would advise D to assume personal liability for no consideration and no commercial benefit.

51.  The issue in this application is whether D has shown that he has a credible defence.

52.  P submits that D’s defence is inherently incapable of belief. Mr Song and D are sophisticated businessmen who have managed substantial businesses; the Guarantees were prepared by P’s solicitors and[22] in-house lawyers of Hao Tian International assisted D to review and propose changes to D’s advantage. Contractual estoppel arises having regard to the terms of the warning letters D signed.

53.  Further, D has not adduced any documentary evidence in support of his case; and commercial rationale exists for the Guarantees.

54.  In determining whether D’s defence is credible, it is necessary to consider the matters below that arise from the evidence.

A.  Commercial rationale for D’s assumption of guarantee obligations

55.  In summary, D’s case is that but for the Representations, he would have no commercial interest to assume guarantee obligations for the Debts owed by the Brother’s Companies in which he had no interest and which would inevitably become defunct.

56.  P disagrees, submitting that D derived two benefits from assuming the guarantee obligations. First (as is common ground) D was anxious to curry favour with Mr Song. Second, (a) at the time of the 2022 Guarantee, Hao Tian had subscribed for USD 45 million worth of the 2022 Bonds; and (ii) at the time of the 2023 Guarantee, Hao Tian had subscribed for HKD 351 million (equivalent to USD 45 million) worth of the 2023 Bonds. The counter guarantees Mr Song provided in the event of the relevant Issuer’s default was ‘extra assurance’ that such default would not occur[23].

57.  But P’s pleaded case[24] gives a different reason, namely, that the parties at the time contemplated that if the 2022 Bonds and 2023 Bonds were redeemed, the redemption money would put Hao Tian International in funds to pay off the Debts.

58.  The reason given is problematic: Hao Tian International is under no obligation and has no reason to pay off the Debts which are owed by Brother’s Companies. Moreover, the redemption monies would go to True Well/Hao Tian International but not to D who, under the terms of the Guarantees, would have the obligation to pay off the Debts personally.

59.  The new case of ‘extra assurance’ appears to stem from Mr Song’s reply affirmation where he explained[25] that the 2022 Guarantee came about to dispel Hao Tian International’s concerns about potential default of the 2022 Bonds. If that were the case, Hao Tian International’s concerns could be addressed by obtaining a guarantee from Mr Song. Why should D be involved at all? It appears to be P’s case that D has an interest in Hao Tian International[26] and as the Receivables came from Hao Tian Credit, P could only look to D for payment. The logic of this submission escapes me.

60.  When analysed, the Guarantees cannot benefit Hao Tian International. Mr Song only provided P with a guarantee if the Bonds were in “default”. If a default were to occur, Mr Song would pay P (and not Hao Tian International) the Debts owed by Brother’s Companies. No benefit would or could accrue to Hao Tian International because Mr Song’s reciprocal guarantee concerns the Consideration in which Hao Tian International has no interest. The ‘extra assurance’ provides no comfort at all to Hao Tian International in the event of a default. It remains exposed under the relevant Bonds.

61.  D’s evidence is that he does not hold any share or position in any entity in the Hao Tian Listed Group and has had no involvement whatsoever with the Listed Group before or after his divorce in 2010. The ‘Hao Tian Group’ that Mr Song refers to in Song 1^st is the BVI company described §4 above.

62.  P does not accept that D has no role or interest in the Hao Tian Listed Group including Hao Tian International. P referred to D’s name card which gives the address of the Hao Tian Listed Group as D’s address and to an interview published in September 2018 in a PRC magazine which referred to D as Chairman of Hong Kong Hao Tian Group which included subsidiaries listed on HKEX such as Hao Tian International.

63.  However, according to the corporate filings for the listed companies, D is not a shareholder or director and holds no official role in those companies. Given the conflict of evidence, it is not possible to resolve that factual dispute except at trial.

64.  Even assuming that D has some role or interest in Hao Tian International, the commercial rationale for D to assume guarantee obligations for the Debts remains elusive.

65.  It is also P’s case that one of the commercial reasons for the Guarantees is the fact that “P’s Camp funded the payment of US $18 million consideration ultimately to be received by Hao Tian Credit[27]”. This is puzzling given that Top Grade and Hundred Gain acquired the Receivables from Hao Tian Credit on 24 June 2021[28]. That transaction took place about a year prior to the 2022 Guarantee and could not have been a commercial reason for the 2022 Guarantee.

66.  Further, I have already alluded to P’s stance regarding Top Grade and Hundred Gain, denying in its pleadings that they are P’s corporate vehicles[29]. The reference to “P’s Camp” as encompassing Top Grade and Hundred Gain is therefore surprising and inexplicable.

B.  Genesis of the Debts

67.  P’s stance is that since its claim is founded on the 2022 Assignments, it is unnecessary to consider the transactions preceding those Assignments. However, those transactions give rise to a number of matters that cannot be swept aside unanswered.

68.  The Debts originate from the Original Loan Agreement of 15 June 2021 when P advanced US $18 million to Top Grade and Hundred Gain under terms that are unknown:

(i)  given that the advances were by way of loan, it is reasonable to assume that they had to be repaid at some point[30]. D states that they were interest-free, presumably an inference drawn from the fact that no interest rate was mentioned when juxtaposed to the assignments referred to (iii) below;

(ii)  on 24 June 2021 the advances were applied to pay Hao Tian Credit for the Receivables which it assigned to Top Grade and Hundred Gain;

(iii)  10 days later, on 5 July 2021, Top Grade and Hundred Gain assigned their respective rights to the Consideration for the Receivables to Brother’s Companies for exactly the same amounts, but repayable a year later on 5 July 2022, with interest at 7%;

(iv)  Brother’s death in early 2022 changed the dynamics, it being common ground (there being no person authorised to act for Brother’s Companies), that Brother’s Companies would become defunct[31], rendering the Consideration for the Assignments of the Receivables irrecoverable[32];

(v)  by the 1^st Extension Notices dated 22 June 2022, Top Grade and Hundred Gain extended the settlement date for the Consideration from 5 July 2022 to 23 June 2023;

(vi)  on the same day, Top Grade and Hundred Gain assigned their respective rights to the Consideration to P who acquired the same, seemingly, without providing any quid pro quo.

69.  The lack of commerciality for the transactions in §68 (i), (iii), (v) and (vi) above is obvious and when coupled with the lack of any explanation, they engender considerable disquiet regarding the existence of the Debts.

70.  Given the existence of the Original Loan Agreement, there is no discernible reason why P should even contemplate taking the 2022 Assignments from Top Grade and Hundred Gain particularly when viewed against the backdrop of P’s denial that Top Grade and Hundred Gain are/were its or Mr Song’s corporate vehicles[33]. It simply does not make sense.

71.  Moreover, P has not produced any documentary evidence to support the flow of funds for the transactions mentioned in §68 above.

C.  Contradiction between D’s pleaded case and D’s affirmation

72.  P highlighted the fact that D’s pleaded case is that Mr Song made the Representations “during in-person discussions and Wechat calls in or around June 2022”[34]. However, that plea is contradicted by D’s subsequent affirmation in that (i) D only obtained Mr Song’s WeChat contact after the June 2022 Guarantee[35] and the WeChat records exhibited are dated October 2022; and (ii) in his affirmation, D asserts that the Representations were made by Mr Song during “a telephone call”[36].

73.  D’s evidence is that he provided his telephone number to Mr Song’s assistant when D first met Mr Song in mid-2019, and Mr Song contacted him through his assistant[37]. Since it is possible to use WeChat to make a voice call to a phone number, the reference to “a telephone call” does not rule out the possibility that the call was made through WeChat.

74.  In any event, whether or not such a contradiction is made out can only be determined at trial.

D.  Absence of documentary evidence

75.  P contends that it is inconceivable, that the Representations are not documented, D being well experienced in business transactions. The evidence shows that even after D and Mr Song were directly connected via WeChat, their interaction was through face-to-face meetings and discussions over voice calls arranged via WeChat. It would appear that it was not their modus operandi to reduce their discussions into writing.

76.  It needs to be borne in mind that Mr Song was seeking D’s assistance to resolve an internal administrative ‘headache’: the parties were not entering into a business transaction. Since D was anxious to curry favour with Mr Song and thus to please, the absence of documentation is unexceptionable given the nature of the Representations.

77.  When upon receiving the demand letter in July 2024, D called Mr Song on his mobile to express his shock and to seek an explanation. His calls went unanswered. Eventually Mr Song returned D’s call informing him that he would arrange for a Nanshan Group representative to speak to D.

78.  D did receive a call from a Mr Ching/Cheng. In response to D’s account of the telephone call, Mr Song states that he does not recall if he had a phone call with D, that Mr Cheng is the only person with the surname Ching/Cheng who was involved in Mr Song’s dealings with D and Mr Cheng does not recall such a call. There is no affirmation from Mr Cheng to address this matter.

79.  Again, this matter cannot be resolved except at trial.

E.  Contractual estoppel

80.  P contends that the warning letters give rise to contractual estoppel. But if D is able to establish at trial that Mr Song knowingly misled him as to the nature and enforceability of the Guarantees, the warning letters cannot avail P.

81.  The law, on public policy grounds, does not permit a contracting party to exclude liability for his own fraud in inducing the making of the contract: HIH Casualty and General Insurance Limited & Ors v Chase Manhattan Bank & Ors [2003] UKHL 6 at §16. A party should not benefit from his fraud. Contractual wording cannot exclude liability for fraudulent misrepresentation: Aquila WSA Aviation Opportunities II Ltd v Onur Air Tasimacilik AS [2018] EWHC 497 (Comm) at §112.

82.  If Mr Song did represent that all the documents were said to be mere formalities, the warning letters would have formed part of the required “paperwork” rather than genuine cautions. Where the very representations are said to have induced the signature of the documents containing the non-reliance wording, the matter cannot be resolved summarily[38].

Conclusion

83.  It would be too simplistic to approach the present application as a run-of-the-mill case to enforce written guarantees. I have set out what I consider to be unusual features of the transactions disclosed by the evidence and the unaddressed lacunae that I find concerning. The observations of Ribeiro J in Billion Silver[39] are applicable.

84.  Further, I do not find the defence incredible in the circumstances of this case. The matter should proceed to trial.

Disposition

85.  I make the following orders:

(1)  paragraphs 2 and 3 of the Summons be dismissed;

(2)  there be an order in terms of paragraph 1 of the Summons; and

(3)  there be an order nisi that the costs of this application be to D, with certificate for 2 counsel, such costs to be summarily assessed and payable forthwith.

86.  I further direct that:

(i)  D do lodge and serve his statement of costs within 14 days after the date of this Decision;

(ii)  P do have leave to lodge and serve its list of objections (limited to 2 pages) within 14 days thereafter;

(iii)  D do have leave to lodge and serve his reply (if any) (limited to 1 page) within 7 days thereafter;

(iv)  there be summary assessment of costs by paper disposal without the need for an attendance.