Wu Yang v. Dayuan International Development Ltd and Others
Read the full judgment text of HCCW 103/2015 on BabelCite. This High Court CFI judgment was delivered on 12 August 2016.
1. The petitioner and the 2 nd , 3 rd , 5 th and 6 th respondents (“ New Bright parties ”) have issued summonses which came on before me for hearing on 19 July 2016:
Cites 1 case
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HCCW 103/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE COMPANIES (WINDING‑UP) NO 103 OF 2015 _________________
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_________________ AND HCMP 2934/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO 2934 OF 2015 _________________
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__________________ AND HCMP 2456/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO 2456 OF 2015 _________________
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_________________ AND HCA 2295/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2295 OF 2015 _________________
_________________ (HEARD TOGETHER)
_________________ D E C I S I O N _________________ 1.The petitioner and the 2nd, 3rd, 5th and 6th respondents (“New Bright parties”) have issued summonses which came on before me for hearing on 19 July 2016:
2.Shortly before the summonses were due to be heard solicitors for the New Bright Parties wrote to my clerk at the instigation of counsel suggesting that rather than deal with the principal application, namely, the Petitioner’s strike out applications, which they suggested following filing of submissions by the parties (including counsel for the 4th Respondent), were obviously unsuitable for summary determination, the court make directions for a speedy trial of the Rectification Proceedings. 3.The one thing that the parties agreed in their voluminous submissions was that the test for striking out paragraphs of the Defence and the three actions was that it was “plain and obvious” that they are unsustainable. My preliminary view having read the written submissions and the most relevant evidence was that it was not obvious that the actions would fail; which is not to say that I thought the New Bright parties’ case was strong. This was partly because of the complexity of the issues and also because it was my preliminary view that given certain unusual features of the background to the business venture that the Company undertook it was probably necessary to hear evidence before the defences could be safely and properly adjudicated. 4.When the hearing commenced I indicated this to counsel and asked whether the petitioner would be content with directions for a speedy trial of both the Petition and the Rectification Proceedings. This was the subject of some debate in particular in relation to whether or not it was better to deal only with certain of the issues of liability only at a first trial, which the New Bright parties, supported by Mr Jat for the 4th Respondent, suggested would be quicker and more efficient. The hearing was adjourned for the parties to consider this further. Having heard the parties further on this subject I am not satisfied at this stage that it is advantageous to divide up the issues on liability in an attempt to separate the narrower issues raised in the Rectification Proceedings from the complaints of unfair prejudice, because I consider that, insofar as I can assess the matter at this stage, some of the latter factual issues may inform the determination of the Rectification Proceedings. 5.I will make the following directions for the further conduct of the various proceedings:
6.So far as costs are concerned the New Bright parties were content for the costs of their application to be costs in the cause of the Rectification Proceedings, which given how matters have developed I consider fair and I so order. The 4th Respondent was not a party to that application. 7.The costs of the strike out applications were more contentions. Both the New Bright parties and the 4th Respondent ask for their costs of the applications. They say that although the strike out applications have not been determined it is clear that they should not have been brought and it is not appropriate to leave the liability for those costs to be dependent on the outcome of the Rectification Proceedings. 8.I have not determined the strike out applications and any view I express in respect of them is preliminary and based on my reading of submissions and evidence without the benefit of hearing counsel. However, what is clear is that applications to strike out pleadings or actions fall to be assessed by reference to a clear and high test: whether it is plain and obvious that the case attacked is unsustainable[1]. This test connotes that not only can a summary determination be made summarily about the prospects of success, but that the answer is fairly obvious. Any application which produces a 3 or 4 day time estimate, lengthy submissions and citation of over 50 cases invites the suggestion that the one thing that is plain is that the answer is not obvious. I accept that there may be cases that are at their heart straightforward, but that in order to understand them it is first necessary to understand their context and dispose of peripheral arguments. But that being said if a test that involves assessing whether a claim or defence is plainly and obviously unsustainable is to be applied in a way consistent with its language, it necessarily involves, in my view, an initial common sense assessment of whether it is suitable for a strike out application. It seems to me that it is doubtful that this one was. As I explained at the outset, in addition to its general complexity I have reservations about whether or not the issues can be determined on affirmation evidence alone. 9.I accept that a certain amount of the work done for the hearing will not be wasted as the arguments I should have heard will have to be addressed at the trial. It seems to me that viewed in the round a fair costs order is that the costs of the strike out applications be the 2nd to 6th respondents costs in the cause of the Rectification Proceedings. 10.The 1st, 2nd and 7th respondents costs of attendance in respect of all the applications shall be costs in the cause.
Ms Linda Chan SC and Mr Keith Lam, instructed by King & Wood Mallesons & Co, for the petitioner Mr Victor Joffe, Mr Jose Maurellet SC, Mr John Hui, Mr Alexander Tang, Mr Jason Yu and Mr Justin Lam, instructed by Li & Partners, for the 2nd, 3rd, 5th, and 6th respondents Mr Jat Sew Tong SC and Mr Justin Ho, instructed by Anthony Siu & Co, for the 4th respondent Ms Bianca Yu, instructed by Wilkinson & Grist, for the 1st, 7th & 8th respondents |
Cases cited in this judgment
Further hearings and rulings under HCCW 103/2015