IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO. 5403 OF 2005
Coram : Her Honour Judge Yuen in Chambers
Date of Hearing : 1st September 2006
Date of Decision : 1st September 2006
1. The defendant filed application for leave to appeal against my order to grant the defendant conditional leave to defend.
2. The ground for leave to appeal is: this court erred to grant conditional leave to defend when this court had reservation about thecontentions of the plaintiff.
3. This court made observation about the lack of documentation in support of the plaintiff’s claim of personal loan. Equally therewas a lack of documentation about the defendant’s contention that the plaintiff was taking up ¼ interest of 5 commercial units.A lack of documentation obviously rendered the enforcement of land interest difficult.
4. The fact that the plaintiff stood to benefit in terms of her agency commission is a fact which is not inconsistent with the makingof a personal loan to the defendant.
5. The defendant’s own conduct of dealing with the property without reference to the plaintiff lends support to the plaintiff’scase (or viewed in the reverse, this shows the defendant’s own understanding of the legal relationship between himself and theplaintiff over the said land transaction) that the plaintiff had no financial interest in the land interest acquired by the defendantover those 5 land properties.
6. Whilst I do not agree the lack of documentation and the plaintiff’s interest in her agency commission cast doubt on the plaintiff’scontended case of the making of a personal loan to the defendant, particularly when one bears reference to the fact that the defendanthad acted and dealt with the property without reference to the plaintiff, exhibiting the defendant’s belief that the plaintiffhad no interest in the 5 commercial units in Chung King Mansion, I cannot possibly say the defendant’s intended appeal is doomedto failure as the whole case boils down to a construction of the evidence placed on the factual contention of the parties. HenceI do grant leave to appeal to the defendant, with costs of this application to be costs in the cause of the appeal.
Ms. Cecilia Wong of Messrs Joseph C.T. Lee & Co. for the Plaintiff.
Mr. Edward Chan of Messrs. Chan, Wong & Lam for the Defendant.