CHIYU BANKING CORPORATION LTD v. GARSWELL LTD AND OTHERS

HCA 1039/2024

[2026] HKCFI 4339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1039 OF 2024

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J U D G M E N T

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A.  INTRODUCTION

1.  In these proceedings, the Plaintiff (“the Bank”) seeks repayment of two loans advanced to D1 and D2. D3 to D10 are all joint and several guarantors of the respective liabilities of D1 and D2.

2.  The Defendants have filed a joint Defence. The only pleaded defence is an alleged oral Debt Relief Agreement pursuant to which the Bank waived its right to recover the loans. The Bank denies the Debt Relief Agreement, which it describes as commercially illogical, unparticularized and unsubstantiated by any documentary evidence, incredible and does not raise any triable issue.

3.  Only D12 has filed an affirmation (“Lee 1^st”) in opposition to the O.14 Summons, which was expressly stated to be filed on behalf of D12 only. Apart from the pleaded defence, D12 raises new allegations that he did not know that he was a guarantor for one loan, and that his liability was vitiated by fraudulent misrepresentation and undue influence of D11.

4.  There are 2 summonses before me:

(1)  The Bank’s summons filed on 4 September 2025 for summary judgment against the Defendants (“the O.14 Summons”); and

(2)  D12 summons filed on 30 January 2026 (“the New Evidence Summons”) to adduce the 2^nd affirmation of D12 (“Lee 2^nd”) in further opposition to the O.14 Summons.

5.  At this hearing, leave has been granted to Messrs Ho & Partners to cease to act for the D1-D10. D1-D11 were all absent.

B.  BACKGROUND

6.  D1-D10 are corporate entities which form part of a corporate group.

7.  D11 and D12 are the shareholders of D1, and D3-D10. Prior to the appointment of receivers by the Bank, D11 and D12 were also the directors of D1, and D3-D10.

8.  D11 is the sole director and shareholder of D2.

9.  The Bank’s case is that on 20 June 2023, D12 attended the office of the solicitors acting for the Bank (“Gallant”) to execute the loan documentation (“the Execution Meeting”). It is D12’s case that the Execution Meeting was held on 26^th instead of 20 June 2023.

10.  The loans granted to D1 and D2 are tabulized as follows:

	Garswell Loan (D1)	Pop Reach Loan (D2)
Date of Facility Agreement	26 June 2023	26 June 2023
Loan amount	HK$560 million	HK$140 million
Repayment	360 months	In one lump sum, 36 months from the date of first utilization
Interest rate per annum	HIBOR + 1.5%	HIBOR + 2%
Default interest rate	10% on top of usual rate	10% on top of usual rate
Corporate guarantee as security	26 June 2023 by D3-D10	26 June 2023 by D1, D3-D10
Personal guarantee	26 June 2023 by D11 and D12 (“Garswell Personal Guarantee”)	26 June 2023 by D11 and D12 (“Pop Reach Personal Guarantee”)
Mortgages	Provided Mortgaged Properties	Provided Mortgaged Properties

11.  Under the Guarantees, the guarantors are to share joint and several liability as principal debtors and not merely as surety, until final payment has been made.

12.  On 28 January 2024, D1 failed to repay the principal and interest in respect of the Garswell Loan in the sum of HK$3,712,943.47. By demand letters dated 29 February 2024 to D1, and D3-D12, the Bank:

(1)  Declared an event of default and acceleration of the Garswell Loan;

(2)  Demanded D1 to repay the total outstanding indebtedness in respect of the Garswell Loan, in the sum of HK$563,149,371.54 as at 27 February 2024.

(3)  Demanded D3-D12 for payment of the total outstanding indebtedness under the Garswell Facility Agreement.

13.  On 29 January 2024, D2 failed to repay interest in respect of the Pop Reach Loan in the sum of HK$916,932.03. By demand letters dated 29 February 2024 to D1-D12, the Bank:

(1)  Declared an event of default and acceleration of the Pop Reach Loan.

(2)  Demanded D2 for repayment of the total outstanding indebtedness in respect of the Pop Reach Loan, in the sum of HK$141,688,943.31 as at 27 February 2024.

(3)  Demanded D1, and D3-D12 for payment of the total outstanding indebtedness under the Pop Reach Facility Agreement.

14.  The Defendants have failed and refused to settle the indebtedness of the Garswell Loan and the Pop Reach Loan to date.

15.  In exercise of the power under the Mortgages, the Bank appointed receivers over the Mortgaged Properties on 20 June 2024. Despite 2 rounds of tender, the receivers were unable to sell the Mortgaged Properties.

16.  On 31 May 2024, the Plaintiff issued the Writ against the Defendants for the outstanding indebtedness and interests.

17.  The joint defence only pleaded the Debt Relief Agreement. Allegedly, there was a meeting between the Bank’s representatives and D11 acting on all the Defendants’ behalf, on 28 June 2024 (“2024 Meeting”). D11 repeatedly informed the Bank that D1 and D2 were unable to repay. The Defendants allegedly accepted the Bank’s proposal that:

(1)  The Defendants shall undertake not to raise any objection regarding the Bank’s sale of the Mortgaged Properties at an undervalue, provided that, in any event, the sale price shall not be under the amount purportedly due to the Bank at the date of completion of the sale and purchase of the Mortgaged Properties (“Defendants’ Undertaking”).

(1)  In consideration of the Defendants’ Undertaking, the Bank would be able to locate a purchaser within a short timeframe, in any event no later than the end of 2024, and the total indebtedness for the two Loans would be settled by the proceeds of sale of the Mortgaged Properties.

(2)  It was an implied term that in consideration of the Defendants’ Undertaking, the Bank shall relief the immediate payment obligations of the Defendants until the completion of the sale of the Mortgaged Properties, unless the market value of the Mortgaged Properties was insufficient to satisfy the total indebtedness.

18.  Allegedly pursuant to the Debt Relief Agreement, the Defendants have raised no objection to either the appointment of the receivers or the sale price for the Mortgaged Properties. However, the Bank breached the Debt Relief Agreement in making this claim.

C.  D12’S DEFENCE TO RESIST THE O.14 SUMMONS

19.  D12 relies on the following defences:

(1)  That he has been discharged from his liabilities by reason of the Debt Relief Agreement;

(2)  That he had never consented to becoming a guarantor under the Pop Reach Personal Guarantee; when the loan instruments were executed at Gallant, no one had explained the contents of the documents to him.

(3)  That his alleged liabilities under the Pop Reach Personal Guarantee was vitiated by the fraudulent misrepresentation of D11; and

(4)  That his alleged liabilities under the Pop Reach Personal Guarantee was vitiated by the undue influence of D11.

Save for item (1), the rest are new defences raised in Lee 1^st.

20.  D12 no longer pursues the defence that the Bank ought to have given credit to income derived from the Mortgaged Properties.

D.  NEW EVIDENCE SUMMONS

21.  By the order of Master Dick Ho dated 19 September 2025, the Court has directed that “no further affirmation [was] to be filed without leave of the Court.”

22.  That mirrored O.32 r.11A(4), which provides that:

“Where the determination of the application is adjourned for the hearing of the summons, no further evidence may be adduced unless it appears to the Court that there are exceptional circumstances making it desirable that further evidence should be adduced.”

23.  It has been held that “exceptional circumstances” under that rule generally mean the satisfaction of the Ladd v Marshall criteria, i.e. that the new evidence (1) could not have been obtained before with reasonable diligence; (2) would or might, if believed, have a very important influence on the result of the case, though it need not be decisive; and (3) is apparently credible though it need not be inconvertible: Falcon Insurance Co (Hong Kong) Ltd v ISP Holdings Ltd [2022] HKCFI 3490 §§8-12, H Au-Yeung J; Tian Hongmei v Zhang Wei [2023] HKCFI 2675 §§26-32, H Au-Yeung J.

24.  D12 sought to file Lee 2^nd only on the Friday before this hearing. He claimed that he did not receive the Warning Notices from Gallant about the Pop Reach Loan. That concerned his defence in paragraph 19(2) above. Such delay in seeking to file Lee 2^nd left no room for the Bank to respond by evidence. It also undermines the unless order which required D12 to put forth all his evidence in opposition by 18 December 2025 (“the unless order”). D12 has not begun to show in his affirmation how the conditions in Ladd v Marshall have been satisfied. Therefore, at this hearing, I have dismissed the New Evidence Summons.

E.  LEGAL PRINCIPLES REGARDING SUMMARY JUDGMENT

25.  The proper approach to a O.14 application has been summarized in Guanghua SS Holdings Limtied v Lim Yew Cheng [2022] HKCFI 1052 at §13, Ng J:

(1)  The Order 14 machinery works on the basis that if the plaintiff’s application is properly constituted, it is prima facie entitled to judgment unless the defendant shows cause to the contrary.

(2)  The mere assertion in an affidavit of a given situation by the defendant responding to an application for summary judgment does not, ipso facto, ground leave to defend.

(3)  The burden is on the defendant to show a real or bona fide defence or some other reason for a trial. The defendant must satisfy the Court that his evidence is capable of being believed and that on the basis of such evidence, there is a fair or reasonable probability of the defendant having a real or bona fide defence.

(4)  In deciding whether there is a fair or reasonable probability of the defendant having a real or bona fide defence, the Court does not isolate each factual issue and consider whether it is possible that the defendant’s story on that issue is credible. Rather, the Court must look at the whole situation.

(5)  In assessing the credibility of the defendant’s factual case, while the Court will not embark upon a mini-trial on affidavit evidence, the Court is not obliged to suspend its critical faculties and assume that the defendant’s evidence is accurate.

(6)  If having regard to inherent plausibility, inconsistency with contemporaneous documents and other compelling evidence, the defence is not credible, the Court must say so.

(7)  If the defendant’s evidence is incredible in any material respect, it cannot be said that there is a fair or reasonable probability that the defendant has a real or bona fide defence.

26.  There is divergence in judicial opinion on whether a defendant who has filed a defence can rely on an unpleaded case to oppose an O.14 application. The Court of Appeal held that he could not (“CA’s holding”): Kaefer AG v Winfield Marine Services Co Ltd, [2022] HKCA 807, §§8, 30, Chu JA (as she then was).

27.  Kaefer has been interpreted as being specific to what happened in that case: Gao Xin Jian Group (Hong Kong) Holding Co Ltd v Kin Lee Precast Concret Products Co Ltd [2024] HKCFI 1058, Cheng J; Wu Yuan Hong v China Zenith Chemical Group Ltd [2025] 1 HKLRD 1191 §§24-27, Au-Yeung J.

28.  A subsequent decision of the Court of Appeal in Wang Shuai v Zhang Qiaohui [2024] HKCA 304 at §46, however, affirmed the principle in Kaefer without elaboration.

29.  The rationale for the CA’s holding was explained in Link Properties Ltd v 1968 Ltd [2025] 5 HKC 705 §§13-26, H Au-Yeung J:

(1)  In Kaefer, the Court of Appeal was alert to there being a new and distinct defence. The Court of Appeal agreed with the District Judge, who had rejected the new defence for 2 reasons (i) its being unpleaded; and (ii) its being raised too late without satisfactory explanation (§§14-19). That a defendant cannot rely on an unpleaded defence when opposing an Order 14 application must be one of the ratio of Kaefer.

(2)  The position has been made clear in Wong Shuai. Kaefer was not referred to the Court in Gao Xin Jian v Kin Lee. Similarly, Wang Shuai was not referred to the Court in Wu Yuan Hong.

(3)  With regard to O.14, rule 4(1) of the Rules of the High Court, the defendant’s showing of cause must be “to the satisfaction of the Court”. In a case where the defendant has not yet filed any defence, it is of course understandable that he may show cause by virtue of an affidavit without filing any pleading. However, once a defence has been filed, the issues would have been defined by such a pleading. The defendant’s reliance on an unpleaded defence cannot be “to the satisfaction of the Court” as required under O.14, rule 4(1).

(4)  There are often cases in which the plaintiffs decide to make applications for summary judgment after they have sight of the defence. If the defendant is allowed to rely on any unpleaded defence, that would defeat the purpose of pleadings.

30.  H Au-Yeung J’s reasoning in Link Properties is convincing.  I therefore decline to follow my previous approach in Wu Yuan Hong.  I will adopt the approach of the Court of Appeal, which is binding on this Court, namely, that a defendant who has filed a defence cannot rely on an unpleaded case to oppose an O.14 application.

31.  I now come to each of the defences raised.

F.  DISCHARGE BY THE DEBT RELIEF AGREEMENT

32.  Since the alleged Debt Relief Agreement operates as a verbal collateral agreement to vary the terms of a written agreement, the threshold onus on the defendant (in resisting summary judgment in reliance on a collateral oral agreement) is compounded by the onus to strictly prove such an agreement: Huang Mucai v Cheng Zhen Shu, HCA 1237/2011 (17.9.2012) §§19-20, DHCJ Lok, as he then was; following Universal Dockyard Ltd v Trinity General Insurance Co Ltd [1989] 2 HKLR 160 at 164H-165B, Lord Goff.

33.  The Bank does not deny the existence of the 2024 Meeting. In fact, the meeting was recorded. I have read the transcripts.

34.  Firstly, in a commercial context, it is unthinkable that there is no documentary trace of the Debt Relief Agreement, even from D11. As stated by DHCJ Jin Pao SC in Leung Chin Sing Rabo v Lo Wai Tung John [2021] HKCFI 2242 §§42-43:

1)  It is rare in modern commercial litigation to encounter a claim based on an agreement which is not only said to have been purely by word of mouth but of which there is no contemporaneous documentary record of any kind. The prevalence of e-mails, text messages and other forms of electronic communication is such that most agreements or discussions which are of legal significance, even if not embodied in writing, leave some form of electronic imprint.

2)  Because the value of a written record is understood by anyone with business experience, its absence may, depending on the circumstances, tend to suggest that no contract was concluded.

35.  Secondly, it was D11 who had allegedly entered into the Debt Relief Agreement on behalf of all the Defendants. The fact that she has not filed an affirmation on her own behalf for any Defendant (including D12) is telling – that the Debt Relief Agreement did not exist.

36.  Thirdly, having read the transcripts of the Meeting, it is quite clear that no agreement was reached at all because:

1)  It was made know to those present that the Defendants had no ability to repay and the value of the Mortgaged Properties could not adequately cover the outstanding indebtedness. There were no recent property transaction in the relevant building and the rental income was not good (T-129)[1].

2)  Plainly, the Meeting was for the Bank to evaluate the borrowers’ financial situation, and to discuss and explore options for resolving the delinquent loan and facilitating repayment. All discussions were tentative.

3)  There were multiple occasions where the Bank made clear that any decision it had to make had to be made accountable to the regulators, its shareholders, as well as its board of directors (T-84, 85, 163, 171 and 177).

4)  The proposal of the Bank was to have the Mortgaged Properties assessed at a sum arrived by surveyors, and to extinguish the Defendants’ debt to that extent, but the Defendants would continue to be liable for the shortfall. Yet, if the Defendants managed to sell the Mortgaged Properties at a price sufficient to cover the entirety of the shortfall, the Defendants could pocket the profits and may possibly be paid an agency fee (T-228, 113-118, 177).

5)  The Bank was already taking a very “stretched” estimation of the sale price (T-177, 228) when coming to an estimated shortfall of HK$200m. Yet, D11 expressed disinterest in that proposal, in that not only would she lose the Mortgaged Properties, but she would also owe the Bank a net sum of about HK$200m (T-178). By the same token, it was incredible and commercially illogical that the Bank would have agreed to waive the shortfall of HK$200 million.

6)  Towards the end of the meeting, it was suggested that the parties would first obtain a valuation of the Mortgaged Properties, in order to explore possible ways forward (T-222, 224, 241, 243). This plainly showed that the Bank had not committed itself to an agreement despite already having some idea of the then market value of the Mortgaged Properties.

7)  At the penultimate page of the transcript (T-275), D11 was asked to digest what was discussed, so that she could propose an arrangement that could be better received by the Bank (消化吓先啦，或者你可能有更加好嘅方案俾到我呢。好冇吖？). Those remarks suggested giving parties time to consider and make proposals.

37.  The transcripts do not suggest the existence of the Debt Relief Agreement. This line of defence is not triable. That is the end of D12’s defence.

G.  NO CONSENT TO THE POP REACH PERSONAL GUARANTEE

38.  There is no dispute that D12 had signed the Pop Reach Personal Guarantee but he alleged that he had not consented to give that guarantee. This unpleaded defence was no longer relied on by D12 the time of the hearing but D12 disputes the existence of documents which is relevant to assessing the credibility of his defence.

39.  There were WhatsApp exchanges between the Bank’s staff and D12, pursuant to which the latter was asked to provide documents in support of his application for the “whole loan”. In particular, the “Brief Introduction of Pop Reach” was a document provided by D12 which gave a brief summary of the nature of business of D2, and described D2 as a company founded by D11 and D12 jointly.

40.  Gallant gave evidence that the Execution Meeting, the Pop Reach Personal Guarantee was printed out for review and consideration of D12. It was interpreted by Gallant before D12 signed. In fact, Gallant had issued a letter to D12 on 15 June 2023, enclosing “Warning Notices” before he actually executed the loan documentation in respect of the Pop Reach Personal Guarantee. The Warning Notices invited D12 to seek independent legal advice and warned him that his liability under the Personal Guarantee would be unlimited. At the Execution Meeting on 20 June 2023, D12 was also asked to sign a “model letter” which outlined in detail the nature of his liability as guarantor for the Pop Reach Loan (“the Model Letter”) and he understood its effect.

41.  Ms Ivy Ho, counsel for D12, queries what “the whole loan” in the Whatsapp messages meant. In my view, there was no ambiguity. It meant the Garswell Loan and Pop Reach Loan. Those 2 Loans were negotiated and loan documentation executed at the same time. It was thus not surprising that the Bank sought a Personal Guarantee for both the Garswell Loan and Pop Reach Loan.

42.  Against such contemporaneous documents, all that D12 could say in Lee 2^nd was that he did not recall having been shown the “Warning Notices” before reading the affirmation of Ms Annie Wong of the Bank. The email enclosing the Warning Notices were not sent to him directly and were not forwarded to him. He referred to his “usual practice” of not going back to office on 15 December 2023 (after allegedly returning from a business trip on that day) to sign the “Warning Notices”.

43.  Despite such assertions, D12 never disputed that the signatures on the Warning Notices were his. He just did not know how a copy of the Warning Notices with his signature appended thereon came into existence.

44.  It is not clear why he sought to adduce Lee 2^nd in view of abandonment of the 2^nd defence. But even if one accepted that D12 had not received or signed the Warning Notices, he had not explained why he had signed Model Letter at the Execution Meeting or that he did not understand its effect. Hence, even if Lee 2^nd was admitted as evidence, it would not have important influence on D12’s case.

45.  Against such assertions of D12, one must not forget his background. D12 was an executive director of a listed company, an accountant by profession and is a highly educated professional. It is hard to imagine that he had never come across personal guarantees before and did not exercise care before signing his own Personal Guarantee.

46.  Although abandoned, the unpleaded defence of no consent to the Pop Reach Personal Guarantee was a desperate attempt of D12 to wriggle out of his liability.

H.  FRAUDULENT MISREPRESENTATION

47.  Fraudulent misrepresentation must be distinctly proved and sufficiently particularized. If the facts pleaded are consistent with innocence or negligence, it is not sufficient to establish fraudulent misrepresentation: Li Shiu To v Cheung Pik Ng (No 2) [2018] 1 HKLRD 934 at §§54 to 57, Au-Yeung J.

48.  Fraudulent misrepresentation has not been pleaded but is only raised in Lee 1^st. D12 is not entitled to rely on this defence. In any case, fraudulent misrepresentation is not capable of belief even on D12’s case.

49.  Firstly, the gist of D12’s case on fraudulent misrepresentation is that due to the non-disclosure or suppression of information by D11, D12 signed the Pop Reach Personal Guarantee without understanding the contents and the legal implications. D12 does not allege that D11 expressly told him that he would only be liable as a guarantor for the Garswell Loan but not the Pop Reach Loan. The alleged non-disclosure or suppression of information could be consistent with negligence or innocence.

50.  Secondly, contrary to D12’s case, the Pop Reach Personal Guarantee was made known to him prior to the Execution Meeting by the Warning Notices and at the Execution Meeting by the Model Letter. See under section G above.

51.  Thirdly, the general rule is that a misrepresentation made by a person not a party to the contract cannot give rise to a rescission of the contract. The only material exception is where the other contracting party had actual knowledge of the representation and that the representation was false: Marios Georgallides v The Secretary of State for Business, Energy and Industrial Energy [2020] EWHC 768 (Ch) §§166-167.

52.  Similarly, a person (C) who has been induced to enter into a contract with A as a result of a misrepresentation made to C by B and of which A had no notice has no ground of relief against A unless B was A’s agent: Chitty on Contracts, 36^th ed, §31.

53.  In this case, even if fraudulent misrepresentation of D11 could be established, there was no suggestion that the Bank knew about it or participated in it.

54.  Fourthly, the Pop Reach Personal Guarantee was executed as a “deed” by D11-12 (as joint and several obligors) in favour of the Bank. It was not a tripartite agreement among the Bank, D11 and D12.

55.  Promises contained in deeds are enforceable by the person in whose favour they are made, whether or not that person is aware of them and so while a deed may give contractual force to an agreement, agreement is unnecessary for the enforcement of the promises which it contains: Chitty on Contracts, 36^th ed, §1-060; citing Macedo v Beatrice Stroud [1922] 2 AC 330 at 337, Viscount Haldane.

56.  Hence, whatever representation had been made by D11 to D12, that simply cannot affect the Bank’s rights against D12 under the Pop Reach Personal Guarantee as a matter of law.

57.  The defence of fraudulent misrepresentation is not triable.

I.  UNDUE INFLUENCE

58.  Once again, this defence has not been pleaded and D12 is not entitled to rely on the same. In any case, this defence has no merits.

59.  To establish undue influence, a defendant must show that (1) the alleged influencer had capacity to influence the defendant, (2) influence was actually exercised, (3) such exercise was undue and (4) such exercise resulted in the impugned transaction: Deutsche Bank v Orient Profit Investment Ltd [2025] HKCFI 5308 at §32, DHCJ Reyes SC.

60.  Undue influence connotes some form of impropriety. Mere pressure or difficult discussions are not sufficient to constitute the exertion of undue influence. Something more, such as positive misrepresentation, excessive pressure, emotional blackmail or bullying, has to be proved: Deutsche Bank, §33.

61.  The defence is, at heart, a simple concept, all to do with informed consent. Once a court forms the view that consent was freely given with full knowledge of the consequences of entering into the relevant transaction, that is the end of the matter, however improvident the transaction may objectively appear: Bank of China (Hong Kong) Ltd v China Hong Kong Textile Co Ltd [2011] 4 HKLRD 457 (CA), per Lam J (as he then was).

62.  The question is whether the relationship in general was one in which the complainant reposed trust and confidence in the alleged wrongdoer so that the latter acquired influence over him. Further, a transaction substantially disadvantageous to the complainant may be sufficient to justify the inference that the relationship had developed into one of influence. See Enonchong, Duress, Undue Influence and Unconscionable Dealing (3^rd ed.) at §§10-039, 10-045.

63.  Misrepresentation and non-disclosure may well justify an inference that there has been undue influence: Chitty on Contracts, 36^th ed., §11-103.

64.  The defence of undue influence was founded on the basis that D12 reposed trust and confidence on D11 as a long-term business partner, as well as D11’s undertaking to manage the property investment for D12. It is alleged that D11, who owed a duty to speak to D12, only presented “half-truth” when she failed to inform him of the need to execute a Personal Guarantee in respect of the Pop Reach Loan.

65.  Even accepting the preceding paragraph, there is no evidential basis to suggest that

1)  D12 was influenced by D11, whether for the purpose of executing the Pop Reach Personal Guarantee or otherwise; or

2)  that there was any “impropriety” in D11’s conduct at all. Whilst it may be true that D12 was not a shareholder or director of D2, he and D11 were its co-founder. He was a shareholder of companies in the same corporate group as D11. In any case, D12 executed the Pop Reach Personal Guarantee with informed consent, as explained in Section G above.

66.  In a three-party situation, where there is undue influence by B over A such that A enters into a transaction with C, the transaction will be voidable by A provided that C had notice of the undue influence or that B was acting as C’s agent in procuring the transaction: Nature Resorts Ltd v First Citizens Bank Ltd [2022] UKPC 10 §14.

67.  D12 has not begun to show that he meets the test in Nature Resorts.  There was nothing suspicious that would have put the Bank on inquiry into the propriety of the Pop Reach Personal Guarantee.

68.  Finally, paragraphs 54-56 above concerning enforcement of a deed is also applicable to the defence of undue influence.

69.  In the premises, I do not find the defence of undue influence to be triable.

J.  THE BANK’S CASE AGAINST ALL DEFENDANTS

70.  The other Defendants have not put forth any defence by affirmation. The Bank’s case against all the Defendants is properly supported by documents showing the 2 Loans to have been advanced, an event of default having occurred under each of the 2 Loans and demands for outstanding indebtedness having been made. The claim for interest (usual and default interest) is supported by clauses in the relevant Facility Agreement pleaded in the Statement of Claim. None of the Defendants have challenged the quantum of outstanding indebtedness or interest rates.

K.  CONCLUSION AND COSTS

71.  D12 has failed to raise any triable issues. The other Defendants have not put forth any defence by affirmation. The Bank is entitled to judgment as claimed.

72.  I make a costs order nisi that (a) all the Defendants do pay the costs of the Bank for this action including the O.14 Summons, up to and including the date of the unless orders; and (b) D12 do pay the rest of the costs up to and including this hearing, with certificates for two counsel. I summarily assess the costs under item (a) at HK$ 200,000; and the costs under item (b) at HK$ 800,000.

73.  I thank counsel for their assistance.