Universal Exports Group Ltd v. Zechin Technology Co Ltd

CACV 52/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 52 OF 2017

(ON APPEAL FROM HCA NO 2613 of 2016)

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Before: Hon Lam VP and Kwan JA in Court

Date of Judgment: 3 April 2017

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.In this appeal, parties have agreed to its disposal by consent and the terms of the order sought were set out in a Consent Summons of 24 March 2017. The context of the appeal is that on a return date in respect of an ex parte Mareva injunction, the Deputy Judge continued the injunction without giving opportunity to the Defendant to file evidence in opposition notwithstanding the consent of the Plaintiff to time being given to the Defendant to do so. The order sought in the Consent Summons are as follows:

“ 1. Leave be granted to the Defendant to file evidence in opposition of the Plaintiff’s Summons filed in High Court Action No. 2613 of 2016 on 18^th October 2016 (“the Plaintiff’s Summons”) within 28 days from the date of the Order to be made;

2. Leave be granted to the Plaintiff to file evidence in reply to the Defendant’s evidence in opposition, if so advised, within 14 days thereafter;

3. No further evidence shall be filed without leave of the Court;

4. The hearing of the Plaintiff’s Summons be adjourned for substantive arguments to be fixed in consultation with counsel’s diaries with 1 day reserved;

5. The ex-parte Mareva Injunction granted by the Honourable Mr Justice Wong on 17^th October 2016 against the Defendant and extended by the Honourable Madam Justice Au-Yeung on 22^nd October 2016 (“the Mareva Injunction”) shall remain in force up to the final determination of the Plaintiff’s Summons or further Order;

6. Notwithstanding any order made to the contrary, the costs of and occasioned by (a) the Plaintiff’s ex-parte application before the Honourable Mr Justice Wong on 17^th October 2016; and (b) the Plaintiff’s Summons including the hearing before the Honourable Madam Justice Au-Yeung on 22^nd October 2016 and the hearing before Deputy High Court Judge Kwok S.C. on 24^th October 2016 be reserved;

7. Such further or other incidental direction(s) as the Court may deem appropriate; and

8. Costs of and incidental to (a) the Defendant’s Summons dated 4^th November 2016 for leave to appeal including the hearing before Deputy High Court Judge Kwok S.C. on 2^nd December 2016, (b) the renewed application for leave to appeal before the Court of Appeal in HCMP 3478/2016, and (c) the appeal herein be in the cause of the Plaintiff’s Summons.”

2.Thus, in effect we are asked to overturn the decision of the Deputy Judge of 24 October 2016.  In the circumstances, notwithstanding the consent of the parties, we have to satisfy ourselves that this is a proper case for us to allow the appeal.

3.The background and arguments involved in the appeal are set out in the papers filed by the parties in the application for leave in HCMP 3478 of 2016.  Leave had been granted on papers and it was pursuant to such leave that the appeal was brought.

4.Having reminded ourselves what had been said in the application for leave, we are satisfied that this is a proper case for overturning the decision of the Deputy Judge notwithstanding that such decision falls within the purview of his case management discretion.  In short, we are satisfied that the Deputy Judge was plainly wrong in the exercise of his discretion in that he must have misunderstood the relevance of the summons for the first injunction (which had been discharged shortly afterwards) or failed to take account of the short time lapse between the summons for the second injunction and the return date hearing and the following matters set out by Mr Lo in his submissions of 14 December 2016 in the leave application:

“ 11.3 Hence, D’s “failure” to file substantive evidence in opposition in the window of about 6 working days (or even, for the purpose of argument, counting the entire 13-day period form 11.10.16 to 24.10.16) cannot reasonably be seen as “significant” and reflecting the lack of merits in D’s defence to P’s Summons and the action. This is especially so given the indisputable facts that:-

(a) D’s only shareholders and directors are individuals residing outside Hong Kong in Mainland China; and

(b D had not been legally represented in this action until 19.10.16, about 2 working days before 24.10.16;”

5.We therefore allow the appeal, set aside the order of the Deputy Judge and make an order in terms of paras 1 to 6 and 8 of the Consent Summons.

Boase, Cohen & Collins, for the plaintiff

Gallant, for the defendant