READY SYSTEM ENGINEERING LTD. v. SHU KIN WAI, KENNY

DCCJ4323/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4323 OF 2002

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JUDGMENT

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The Plaintiff claims against Defendant for a total of $600,000 under 2 agreements dated the 8th November 2001 and 8th February 2002.

2. Under the 1st agreement the Plaintiff advanced to the Defendant $300,000 on 6th August 2001 and $100,000 on 8th November 2001. The Defendant agreed to repay the said sums by 31st May 2002.

3. Under the 2nd agreement the Plaintiff advanced to the Defendant $200,000. The Defendant agreed to repay the said sum of 31st May 2002.

4. Should the Defendant default in repayment by 31st May 2002 under the aforesaid agreements the Defendant would pay interests at the rate of 1.5% above prime per annum from their respective dates of repayment.

5. The Defendant provided the Plaintiff with an undated personal cheque in the sum of $600,000. The Defendant defaulted in payment.

6. The Plaintiff now takes out an O.14 summons.

7. The Defendant argued that that was a collateral contract to set off the sums advanced by deducting the sums from interim payments in respect of a construction project at the 4th phrase of Kowloon Station (KIL 11080 - site D) in which Kenfort Engineering Co. Ltd. (Kenfort) sub-contracted from the Plaintiff. The Defendant is a director of Kenfort.

8. That was only an oral agreement, if any, between Kenfort and the Plaintiff. In any event this would be to use parol evidence to vary or add to the terms of the written agreements.

9. There was a loan agreement entered into between before the 1st agreement of the 8th November 2001 in which the Plaintiff agreed to make a loan to the Defendant and Kenfort (Exh. SKWK-5). However that agreement was superseded by the 1st agreement dated the 8th November 2001 to reflect the true position and intention of the Plaintiff and the Defendant (Paragraphs 6 and 7 of the affirmation of Wan Man-keung).

10. The terms of these 2 loan agreements were specific and unambiguous. They were personal loans.

11. There is no defence to the Plaintiff's claim. In the premises judgment for the Plaintiff in the sums of $600,000 together with interests at 1.5% above prime rate per annum from the respective dates of the loan until judgment and thereafter at judgment rate.

12. Costs to the Plaintiff. Certificate for counsel.

Representation:

Ms. Liza Jane Cruden instructed by Messrs. Wong & Fok for Plaintiff.

Mr. Simon K.M. Lui instructed by Messrs. Lau, Chan & Ko for Defendant.

Remarks:
Appeal by the Defendant to Court of Appeal. Appeal allowed. Please refer to the appeal judgment of CACV000352/2003.