Pilot International Investment Ltd V.Ingredients Plus Holdings (Pte) Ltd and Others

HCMP 2454/2015

[2018] HKCFI 375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2454 OF 2015

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DECISION

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1.The genesis of the disputes between the parties in this case is the existence or otherwise of a pre-emption agreement relating to the transfer by shareholders of their shares in the 3^rd defendant. In short, the plaintiff says that such an agreement was made during a shareholder’s meeting. The 1^st defendant denies this.

2.In examining the parties’ respective cases on this issue, the court reached a preliminary view that the question of whether or not a concluded agreement had been reached by the parties, and if so upon what terms, could not be determined by reference only to the affidavit evidence and exhibits thereto, and that the just and expeditious disposal of this matter required the court to receive oral evidence. 

3.Further, as the plaintiff is raising matters of alleged impropriety by the 1^st defendant and its representatives, the same which is denied, that the interests of justice required the court to hear and determine these allegations through the reception of oral evidence. 

4.The court has today canvassed its preliminary views and concerns with counsel for the plaintiff and defendants.  Having done so both counsel now agree that oral evidence as to the existence or otherwise of the alleged pre-emption agreement is appropriate, although Mr Yu for the defendants more readily so than Mr Wong for the plaintiff, whose first position this morning was that the existence of the agreement was indisputable. 

5.This case has already attracted much work by counsel and solicitors, and the provision of detailed affidavits and exhibits.  The issue as to the existence of the pre-emption agreement is of narrow compass. 

6.In these circumstances, and bearing in mind the question of delay, it is not, in my view, appropriate to order the continuation of these proceedings as if by writ.  I will make orders under Order 28, rule 4(3) for the determination of the existence or otherwise of the pre‑emption agreement to be heard on oral evidence I will now hear the parties on the directions that they seek. 

7.Having discussed the draft order, or the order to be made with counsel, I make the following order. 

8.Upon the defendants’ undertaking to supply the plaintiff’s solicitors with a copy of the minute of the meeting of the 3^rd defendant on 11 May 2012, signed by hand, if any such minutes exist and are within the defendants’ possession, power or custody, it is ordered that:

(1)   the substantive hearing of the originating summons dated 2 October 2015 be adjourned to dates to be fixed, with three days reserved, in consultation with counsel’s diaries;

(2)   the parties be at liberty to call and to cross-examine the deponents of the current evidence in this case, if so advised, upon the issue of whether any binding agreement on pre-emptive rights was reached at the meeting of the 3^rddefendant on or about 11 May 2012, and if so upon what terms (“the issue”). 

(3)   No further evidence shall be filed without the leave of the court;

(4)   if a deponent in these proceedings does not attend the substantive hearing referred to in paragraph 1 of this order for cross-examination, that deponent’s affidavit or affirmation evidence will be excluded;

(5)   parties be at liberty to apply; and

(6)   costs of today’s hearing be reserved.

Mr Anson Wong Yu-yat, instructed by Y H Yeung and Associates, for the plaintiff

Mr Jason Yu, instructed by F Zimmern & Co, for the 1^st to 3^rd defendants