Court of First Instance affirms approach to raising unpleaded defence in resisting summary judgment

In Hong Kong Topkey Ltd v Wintac (Hong Kong) Ltd [2023] HKCFI 1711, the defendants appealed against a grant of summary judgment involving an outstanding loan of US$4.3 million plus interest. An issue was raised as to whether the defendant can rely upon an unpleaded defence to resist an application for summary judgment, despite the defendants having already deposed sufficient facts to sustain the unpleaded defence sought to be raised.

Dismissing the appeal, DHCJ MK Liu held that the recent judgment of the Court of Appeal in Kaefer AG v Winfield Marine Services Co Ltd [2022] HKCA 807 has laid down a general principle that a defendant cannot rely upon an unpleaded defence where a Defence against the plaintiff’s claim was filed. As such, the Judge dismissed the appeal having found no arguable defence in any of the reasons submitted.

By affirming the principles in Kaefer, the case accentuates the need for a defendant to seek leave to amend the Defence when the defendant intends to raise an unpleaded defence against an application for summary judgment. Only where leave is granted can the defendant rely upon the same to resist the plaintiff’s application. This approach finds resonance in a similar situation of seeking leave to amend a Statement of Claim in light of an application to strike out pleadings.

Kenneth Lee and Edward K H Ng acted for the 1st and 2nd Defendants.