Read the full judgment text of CACV 000024/1992 on BabelCite. This Court of Appeal judgment was delivered on 22 May 1992 before Sir Derek Cons, V.P., Bokhary JA, Kaplan JA.
Civil procedure – ex-parte application – prohibition order – non-disclosure – continuing duty of disclosure – sale or return of jewelry – personal guarantee – Hong Kong Court of Appeal – whether plaintiff who obtained ex-parte prohibition order was under a continuing duty to disclose material change in circumstances before serving the order – whether failure to disclose discussions between applicant and respondent that took place between grant of order and its service constituted material non-disclosure – whether order for indemnity costs was appropriate – facts concerning consignment of jewelry worth $5,500,000 by plaintiff to French firm of which Mr. Hababou was a member, supported by personal guarantee signed by Mr. Hababou – French proceedings in which plaintiff recovered approximately $869,000 against 1st defendant – French court declared memorandum of agreement null and void – ex-parte prohibition order obtained by plaintiff against Mr. Hababou discharged by Liu, J. for material non-disclosure – appeal dismissed. Holding: A plaintiff who obtains an ex-parte order is under a continuing duty, while the order remains ex-parte, to disclose to the court any material change in circumstances; the duty is particularly heavy where the order is of a serious nature such as a prohibition order. The plaintiff's failure to disclose the discussions between Mr. Tsang and Mr. Hababou that occurred between 16 January and 20 January 1992 was a material non-disclosure warranting discharge of the order. Court of Appeal would not interfere with the trial judge's discretion to award indemnity costs, given the plaintiff's conduct in retaining the order for four days and not serving it until a time that suited him. Court of Appeal relied on the principle in Commercial Bank of the Near East plc v. A & Others that there is a continuing obligation of disclosure applicable to all ex-parte orders, not just Mareva injunctions. Outcome: Appeal dismissed; prohibition order discharged; plaintiff ordered to pay 2nd defendant's costs of the discharge application on an indemnity basis.
Legal issues: Continuing duty of disclosure after obtaining ex-parte prohibition order · Non-disclosure of French judgment declaring memorandum of agreement null and void · Costs on indemnity basis for discharge of ex-parte prohibition order
Outcome: Appeal dismissed; prohibition order discharged; order for indemnity costs upheld.
Cited by 1 case