Kerry Francis Moore also known as Kerry Moore v. Jennex Corporation Ltd and Others
Read the full judgment text of HCMP 2109/2015 on BabelCite. This High Court CFI judgment was delivered on 3 November 2016.
1. These proceedings were commenced by originating summons. So far as I am aware, none of the respondents has contended that these proceedings should be converted into a writ action by reason of the existence of or need to resolve factual disputes.
Cited by 3 cases · Cites 2 cases
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HCMP 2109/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO 2109 OF 2015 ________________________
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_________________ JUDGMENT _________________ 1.These proceedings were commenced by originating summons. So far as I am aware, none of the respondents has contended that these proceedings should be converted into a writ action by reason of the existence of or need to resolve factual disputes. 2.Kerry Francis Moore, also known as Kerry Moore, (“Kerry”) is the applicant. Jennex Corporation Limited (“Jennex”) is the 1st respondent. Raymond Lo, also known as Lo Kin Kei, (“Raymond”) is the 2nd respondent. Correstone Limited (“Correstone”) is the 3rd respondent. Thomas Scott Farnen (“Thomas”) is the 4th respondent. 3.These proceedings were brought in relation to two shares in Shineland Corporation Limited (“Shineland”). The Raymond held share in Shineland 4.One share is held by Raymond who acknowledged that he held the share “on trust for and on behalf of Kerry” and Raymond said he “is willing and ready to abide by any order which this court deems fit to make in relation to” this share. What he has not explained is why he has not done so without an order of the court. 5.In relation to the Raymond held share in Shineland, Thomas deposed in §44 of his 2nd affirmation that:
6.Thus, there is no dispute that Kerry is entitled to have the Raymond held share in Shineland transferred to Marketing Trustees Limited. The Jennex held share in Shineland 7.The other share in Shineland is held by Jennex. 8.Kerry’s case is that this share is held by Jennex on trust for him under the Deed of Trust dated 24 July 2003 made by Jennex as “Trustees” with the Settlor. Clause 16(b) of the Deed provided that:
9.There is no dispute that the Shineland share was transferred to Jennex. What remains is the question of acceptance by Jennex as an addition to the Trust Fund. 10.(1) Kerry affirmed in §32 of his Third Affirmation that:
11.Mr Wilson Leung claimed that Raymond and Correstone adopted a neutral position as to whether the Jennex held share was held on trust for Kerry. Raymond is a solicitor and partner of Raymond’s Firm and Correstone is a service company owned by Raymond’s Firm. Raymond and Correstone had both resigned as director and shareholder of Jennex leaving Jennex with no director or shareholder. 12.Raymond argued that they acted as nominees in accordance with the Trustee Appointment Agreement and all their actions on behalf of Jennex therefore required approval from all four Appointors. This argument is similar to Thomas’ argument as to which see below. The “Trustee Appointment Agreement” does not require approval from all Appointors for actions on behalf of Jennex. I reject Raymond’s argument. 13.Jennex was the trustee for the Shineland trust but Thomas argued that Jennex held the Shineland share beneficially. 14.It is not disputed that the profits from the Shineland share were held by Jennex on trust for Kerry. But, Mr John Hui contended that holding the profits from the share on trust did not mean that the share was held on trust. 15.To start with, this contention seems illogical. If the Shineland share was held by Jennex beneficially, how did the dividends paid out on or profits from the Jennex held Shineland share become trust property? Moreover, what is the point of holding a share beneficially if the profits or dividends are not? 16.There is an undated written document entitled “Terms and Conditions for Acceptance of Appointment as Trustee” made by (1) Jennex as “The (sic) Trustee”, (2) Owen Neil Williams, Joel Martin Truscott, Kerry and Thomas as “the [sic] Appointors”, and (3) The Partners of [Raymond’s Firm]. The “Background” in the document read as follows:
17.Mr John Hui contended that Recitals C & D established that Raymond and Correstone were nominees of all four Appointers, ie Owen Neil Williams, Joel Martin Truscott, Kerry and Thomas. 18.I have no hesitation in rejecting Mr John Hui’s contention as wholly unmeritorious. Recitals C and D established nothing of the sort. The point is so obvious that it is not capable of much elaboration. 19.Mr John Hui asserted in §9 of the 4th respondent’s Skeleton Submissions that the beneficiaries of the four sub‑trusts are:
20.Thus, each of the four Appointors (Thomas’s ex‑wife was a co‑beneficiary with Thomas) has his own sub‑trust. 21.Just as Kerry has no business to meddle in the East Orient Trust, Thomas has no business to meddle in the Shineland Trust. If Mr John Hui’s contention were tenable, Thomas and the other two Appointors could meddle in the Shineland Trust, then Kerry and the other two Appointors could meddle in the East Orient Trust. This is plain nonsense and defeats the purpose of each of the four Appointors (Thomas’s ex‑wife was a co‑beneficiary with Thomas) having his own sub‑trust. 22.I hold that Thomas and the other two Appointors had no interest, no right and no say in the Shineland Trust. 23.As Kerry is the sole beneficiary and protector of the Shineland Trust, the Jennex held Shineland share should also be transferred to Marketing Trustees Limited. Disposition 24.I make an order in terms of §§(1) – (4) of the Re‑Amended Originating Summons. 25.If Raymond and Jennex should fail to make the transfers as directed by me, Kerry is at liberty to apply to a judge to order the transfer to be carried out by some other fit and proper person to effect the transfer. 26.The trust (and sub‑trust) structure is complicated. The events date back a couple of decades. There is no or no proper introduction or explanation of the factual background. The documents and authorities filed (nine lever arch files in all) are voluminous and most of them have not been referred to at the hearing. P C Woo & Co lodged a bundle called “Core Hearing Bundle (2)”. This bundle was hardly referred to. The arguments range over a large number of issues, most of which are irrelevant. Much of Thomas’ affirmations and arguments are irrelevant and inadmissible. Costs order nisi 27.This is an unnecessary litigation. Raymond should not have made it necessary for Kerry to apply to court. 28.Thomas’ conduct (including the conduct of his counsel) is deplorable. 29.I make an order nisi under Order 42, rule 5B(6) of the Rules of the High Court, Cap 4A, that Kerry’s costs be taxed on indemnity basis and paid by the Raymond, Correstone and Thomas. Postscript 30.Before leaving this case, I must record the conduct of Mr John Hui in persisting to make very serious allegations in the course of his submissions. 31.These proceedings were commenced by originating summons. So far as I am aware, none of the respondents has contended that these proceedings should be converted to a writ action by reason of the existence and need to resolve factual disputes. If the very serious allegations made by Mr John Hui were material to the resolution of the litigation, he should have applied to convert the proceedings to a writ action. But he has not. 32.A litigant or counsel must not make very serious allegations (including fraud) without cogent evidence supporting the same. This much is trite and I will cite two cases to make good this proposition. 33.In Associated Leisure Limited and others v Associated Newspapers Limited [1970] 2 QB 450 at p 456, Lord Denning MR said:
34.In Choy Bing Wing v Chief Executive of HKSAR China and others [2006] 1 HKLRD 666 at §9, J Lam J (as he then was) said:
35.Mr John Hui criticised the Financial Statements relied on by Mr Andrew Lynn. I asked Mr John Hui whether he was disputing authenticity and he replied in the negative. 36.Soon after his reply, he used the word “manufactured”. I did not see how he could responsibly allege manufacture of a document if he was not disputing authenticity. I stopped him and he withdrew the “manufacture” allegation. 37.Having withdrawn the allegation of “manufacturing”, he felt it proper to go on to allege that the document was “created by this party in favour of one position”. I asked him to prove the “creation” of the document. He made no attempt to do so. 38.Undaunted, Mr John Hui went on to accuse Kerry of trying to alter the checks and balances initially imposed and tried to “extract” money from this trust. 39.I asked him to make good his allegation. What he did was to assert that the application “is premeditated by an ulterior motive of extracting money from the trust structure by altering the balance …”. 40.Making very serious allegations without any or any cogent evidence in support is serious misconduct. Smearing does not take Thomas’ case any further.
Mr Andrew Lynn, instructed by de Bedin & Lee LLP, for the applicant Mr Wilson Leung, instructed by Smyth & Co, for the 2nd and 3rd respondents Mr John Hui, instructed by P C Woo & Co, for the 4th respondent |
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