Top Gains Minerals Macao Commercial Offshore Ltd v. Tl Resources Pte. Ltd.

HCMP 1622/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1622 OF 2015

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DECISION
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1.I have before me an application by the plaintiff seeking a continuation of an ex parte Mareva injunction order (“the ex p Order”) granted by Barnes J on 6 July 2015.

2.The ex p Order also provided for service of the proceedings herein on the defendant out of the jurisdiction, and I am told that service has been effected in accordance with that order.  The defendant has not appeared this morning although it is clear that the defendant has received notice of the hearing.

3.For the present purpose, it is not necessary for me to set out the background facts of this case, save to mention that the plaintiff’s claim against the defendant is for damages for non-delivery of goods under a sale and purchase contract.  That contract also provides for disputes arising thereunder to be resolved by arbitration in Singapore, and I am given to understand that arbitration proceedings have already been commenced by the plaintiff.  The proceedings herein are commenced under s.21M of the High Court Ordinance and s.45 of the Arbitration Ordinance in aid of the arbitration proceedings in Singapore.

4.The plaintiff has also applied to the High Court of the Republic of Singapore for a Mareva injunction in aid of the arbitration proceedings, but that application was dismissed by Senior Judge Justice Kan in the Singapore court on 19 June 2015.

5.I am informed by senior counsel for the plaintiff that one of the main issues canvassed before Barnes J at the ex parte hearing on 6 July 2015 concerned the refusal of the Singapore court to grant a Mareva injunction in favour of the plaintiff.  From the plaintiff’s skeleton argument that was placed before the learned judge and as confirmed by senior counsel for the plaintiff, two main arguments were advanced by the plaintiff as to why the Singapore court’s refusal to grant a Mareva injunction should not lead to a similar refusal by the Hong Kong court to grant a Mareva injunction.  First, it was said that Singapore law adopted a test or approach regarding the issue of risk of dissipation of assets which was different from that applied under Hong Kong law or UK law.  In particular, it appears from paragraph 8(2) of the skeleton argument that it was suggested that under Singapore law, it would be necessary for the plaintiff to show that the defendant sought to be restrained had acted “fraudulently, dishonestly or unconscionably” to give rise to an inference of a real risk of dissipation of assets.

6.Second, it was said that new evidence had been discovered by the plaintiff since the hearing in the Singapore court on 19 June 2015.

7.There is before the court a letter written by Morgan Lewis Stamford dated 2 July 2015, the plaintiff’s Singapore lawyers, containing a report of the hearing in the Singapore court on 19 June 2015.  My reading of that letter does not suggest to me that the Singapore court applies any different test or approach regarding the issue of risk of dissipation of assets for the purpose of granting a Mareva injunction.  Further, it appears from that letter that in fact, Senior Judge Justice Kan indicated at the hearing that “he did not consider it sufficient to show that there was any ‘fraudulent, unconscionable or dishonest’ conduct” on the part of the defendant, and that the learned judge refused to grant the Mareva injunction sought because, on his analysis of the evidence and materials before him, he came to the conclusion that the threshold of “real risk of dissipation of assets” was not met.

8.As I informed senior counsel for the plaintiff this morning, I am concerned whether, at the ex parte hearing before Barnes J, the basis of the Singapore court’s decision to refuse to grant a Mareva injunction was accurately or fairly explained to the learned judge.  It is possible, and I say no higher than that, that the defendant can mount a reasonable argument that the ex p order ought to be set aside on the ground of material non disclosure.  I bear in mind, however, that I have not received evidence and have not heard detailed submissions on the relevant Singapore law.  Neither have I heard from the defendant.  Also, on the materials before me, it may be open to the plaintiff to argue that, even if there was any material non disclosure, the ex p order ought to be maintained or that there should be a fresh grant of a Mareva injunction.

9.I should add that, on the materials currently before me and without having the benefit of considering any evidence or submissions from the defendant, I am satisfied that the plaintiff has established a good arguable case on the merits and a real risk of dissipation of assets by the defendant for the purpose of granting a Mareva injunction.  I am also satisfied on the materials currently before me that it would be in order to grant a Mareva injunction against the defendant.

10.In all the circumstances, I consider that the best course would be to continue the ex p order in the meantime, without prejudice to the defendant to apply to discharge the order on the ground of material non disclosure or on any other grounds.  I shall however require the plaintiff to pay into court or provide a bank guarantee in the amount of HK$300,000 as fortification of its undertaking in damages having regard to the fact that it is a foreign company.  Such payment in or provision of bank guarantee is to be effected within 14 days from the date hereof, failing which the ex parte order as continued today shall be discharged without further application.

Ms Winnie Tam, SC, and Ms Catrina Lam, instructed by Messrs Reed Smith Richards Bulter, for the plaintiff

The defendant, TL Resources Pte Ltd., not represented, (absent)