CONTRACTS — loan agreement — whether agreement reached between lender and borrower — oral discussions followed by written agreement executed by lender but not borrower — loan funds advanced to and used by borrower — agreement established by discussions and subsequent conduct — where lender did not advance full amount — waiver of right to further advances — Hong Kong law — alleged licensing requirement under Ordinance — no submissions advanced which explained why lender’s conduct fell within Ordinance — defence failed
Quick Take
1An oral agreement for a loan, evidenced by discussions between a company director and the lender's representative and confirmed by subsequent conduct (advance and receipt of funds, use for the stated purpose), is binding on the company notwithstanding that the written loan agreement was never executed by the borrower.
2Where a borrower's director communicates that no further loan funds are required, the borrower waives its right to further advances and the shortfall from the originally agreed loan amount does not constitute a defence to repayment of the sum actually advanced.
3Foreign law must be proved as a question of fact by evidence; where the text of a foreign statute is not put before the court and no submissions explain why the plaintiff's conduct falls within it, a defence based on that statute fails.
