Anz Commodity Trading Pty Ltd v. Excellence Raise Overseas Ltd and Others

HCCL 4/2017

[2019] HKCFI 2092

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO 4 OF 2017

____________

____________

Before: Hon Mimmie Chan J in Chambers

Dates of Written Skeleton Submissions: 7,12 and 17 August 2019

Date of Decision: 22 August 2019

___________________

D E C I S I O N

___________________

1.The 9^th and 10^th Defendants seek leave to appeal against my Decision of 9 July 2019 (“Decision”), the nomenclature of which is adopted, whereby I continued the proprietary Injunction granted on 13 November 2018.

2.The Decision to continue the Injunction was an exercise of the Court’s discretion, and the principles governing an appeal against an exercise of discretion are trite, and clear.   

3.In Komala Deccof & Co SA & ors v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (Pertamina) CACV 167/1986, 3 April 1987 the Court of Appeal referred to the statement of Lord Brandon in the Abidin Daver [1984] 1 AC 398:

“It follows that where a judge at first instance has exercised his discretion in one way or the other, the grounds on which the appellate court is entitled to interfere with the decision which he has made are of a limited character. It cannot interfere simply because its members considered that they would, if themselves sitting at first instance, have reached a different conclusion. It can only interfere in three cases: (1) where the judge has misdirected himself with regard to the principles in accordance with which his discretion had to be exercised; (2) where the judge in exercising his discretion has taken into account matters which he ought not to have done or failed to take into account matters which he ought to have done; or (3) where his decision is plainly wrong.”

4.In G v G [1985] 1 WLR 647, the English Court explained that this means that the appellate court has to be satisfied, not merely that the judge had made a decision with which the court might reasonably disagree, but that his decision was so plainly wrong that the only legitimate conclusion was that he had erred in the exercise of his discretion.   

5.The matters which the Defendants seek to argue on the intended appeal, to show that there is no evidence that the sums transferred to the Defendants are entirely traceable and attributable to those funds which the Plaintiff had paid to MCM, have all been raised and argued before the Court at the hearing.  I agree with the Plaintiff, that the Defendants have failed to identify any palpable error or omission made, as to matters which had not been considered or matters which were wrongfully included in the consideration, when the Court found that there was a serious question to be tried as to the existence of a traceable proprietary claim.

6.On the issue of delay, again, the Defendants have failed to establish that the Decision to continue the Injunction notwithstanding the time-lapse relied upon by the Defendants was plainly wrong.

7.I am not satisfied that the intended appeal has any reasonable prospects of success, or that there is any other reason why the appeal should be heard.  The application for leave is dismissed, with costs to the Plaintiff, summarily assessed at $59,000.

Mr Derek Chan, instructed by Holman Fenwick Willan, for the plaintiff

Mr Kenny CP Lin, instructed by Wai & Co, Solicitors, for the 9^th & 10^th defendants