Read the full judgment text of HCA 1195/2020 on BabelCite. This Court of First Instance judgment was delivered on 18 January 2021 before Coleman J.
Civil procedure – interim injunctions – proprietary injunction – worldwide Mareva injunction – ancillary disclosure – email fraud – tracing – unjust enrichment – knowing receipt – dishonest assistance – constructive trust – bona fide purchaser for value without notice – change of position defence – whether to continue proprietary injunction over frozen funds – whether to continue worldwide Mareva injunction – whether ancillary disclosure order should be made – whether UOB bank account records should be disclosed for tracing – material non-disclosure on ex parte application – D3 received US$1,151,143 from D2 in four split tranches on 9 July 2020, which D2 had received from D1 into which P had transferred US$1,333,609.23 on 7 July 2020 as a result of email fraud impersonating the intended recipient – D3 claimed the D3 Sum was partial payment for sale of vegetable fat to its long-term Nigerian customer GNL under three sales contracts and four invoices predating the fraud – no documentary evidence of typical course of dealing with GNL or of any enquiry following WhatsApp proposal of 8 June 2020 by GNL to use a third-party Shanghai-based payer – four tranches did not match any outstanding invoice and full invoiced amount was not paid – after-the-event allocation letter from GNL dated 2 September 2020 – serious issue to be tried on unjust enrichment, knowing receipt, dishonest assistance and constructive trust claims – American Cyanamid principles applied to proprietary injunction application – proprietary injunction granted over D3 Sum in lieu of continued Mareva injunction, with no Mareva-style exceptions, since gaps in D3's financial and corporate disclosure and possibility of competing claims meant damages might not be adequate – worldwide Mareva injunction not continued as the conduct complained of (receipt of funds via a money-laundering arrangement) did not establish a real risk of dissipation by D3 – BFP Defence and COP Defence insufficient to defeat the proprietary claim at this stage given the suspicious circumstances, the absence of any enquiry despite express opportunity, and the late identification of the invoices – ancillary Mareva disclosure falls away with the Mareva injunction, but disclosure of UOB bank account records for 9 July to 8 September 2020 (inclusive) granted in support of the proprietary tracing exercise, including source of the US$1.4 million paid into the account on 8 September 2020 – alleged material non-disclosure on the ex parte application held not material enough to affect the discretion exercised – costs reserved to be dealt with following written submissions.
Legal issues: Continuation of proprietary injunction over D3 Sum · Continuation of worldwide Mareva injunction · Bona fide purchaser for value without notice defence · Change of position defence · Ancillary Mareva disclosure order · Disclosure of D3's UOB bank account records and statements for tracing
Outcome: Worldwide Mareva injunction not continued; proprietary injunction granted over US$1,151,143 (the D3 Sum) in D3's UOB bank account; ancillary disclosure granted in support of the proprietary tracing exercise; D3's BFP Defence and COP Defence held insufficient at this interlocutory stage to defeat the proprietary claim; costs reserved.
Cited by 28 cases · Cites 7 cases