Intrapacific Ltd v. Create Mood Ltd and Others

HCA 1968/2019

[2019] HKCFI 2877

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1968 OF 2019

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D E C I S I O N

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1.This is the return date of the Mareva/proprietary Injunction against Ds granted ex parte by Coleman J on 25 October 2019 (the “Injunction Order”). P is seeking variation of its terms in respect of D3, retrospective leave for service out of jurisdiction of the inter parte summons and the related documents, and continuation of the Injunction Order as varied.

2.I have read the affirmation of Yan King Fai dated 25 October 2019 filed in support of the ex parte application.  In gist, P claims to be the victim of an elaborate email / identity fraud, whereby P was deceived into transferring by way of telegraphic transfers 5 sums on divers dates between 13 September 2019 and 21 October 2019 to the 3 defendants. The fraud was subsequently discovered, and the present action commenced.

3.At the time when the Injunction Order was sought and obtained, P believed that 3 sums in the total amount of EUR1,348,000 had been transferred to D3 — hence the ceiling amount restrained in so far as D3 is concerned.  P has subsequently discovered that the latest of those 3 transfers, effected on 21 October 2019 in the amount of EUR798,000, had in fact been successfully stopped.  P therefore seeks an Order reducing the ceiling amount restrained against D3 from EUR1,348,000 to EUR550,000.

4.On the question of service, I have considered the affirmation of service of Tse Sing Yu dated 12 November 2019, the draft affidavit of Alistair James Mellor, the draft affidavit of Alfred Eccles, and the affidavit of Magdalena Rudzka.  The registered offices of D1 and D2 are both in England. That of D3 is in Poland.  Leave has been granted by Coleman J for P to issue and serve the Writ herein upon D1 to D3 outside jurisdiction.  I now also grant P retrospective leave pursuant to Order 11 rule 9 to serve the Summons herein and the related documents upon Ds outside jurisdiction.  I am satisfied on the evidence of the validity of the service of the Writ, the Summons and the related documents on Ds.  None of them have entered appearance.  No evidence in opposition has been placed before me.

5.On the evidence before me, I am satisfied that P has demonstrated a serious issue to be tried (if not in fact good arguable case).  Given the nature of the alleged fraud, risk of dissipation can clearly be inferred. Balance of convenience tilts clearly in favor of continuation of the Injunction Order.

6.In respect of the ceiling amount against D3, I vary it to EUR550,000 to reflect the fact that the transfer of the last sum of EUR798,000 has been stopped.  I also allow the consequential variations as marked up on the draft Order. 

7.In the circumstances, I continue the Injunction Order as varied.  I order that the costs of these applications be P’s costs in the cause.

Mr Martin S Y Tse of Oldham, Li & Nie, for the Plaintiff

The 1^st to 3^rd Defendants were not represented and did not appear