New Front Developments Ltd v. Rhb Securities Hong Kong Ltd

HCMP 597, 600 & 601/2018
[2021] HKCFI 707

(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 597 OF 2018

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BETWEEN

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AND

MISCELLANEOUS PROCEEDINGS NO 600 OF 2018

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BETWEEN

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AND

MISCELLANEOUS PROCEEDINGS NO 601 OF 2018

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BETWEEN

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(Heard together)

Before:  Hon K Yeung J in Chambers

Date of Hearing:  29 August 2018

Date of Decision:  17 March 2021

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D E C I S I O N

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1.Arising from certain disputes between the plaintiff (“P”) and the Intended 2^nd Defendant (“D”), P commenced HCMP 120/2018 (“HCMP 120”) and on 31 January 2018 obtained on an ex parte basis an injunction against D.  On 9 February 2018, upon certain undertaking (the “Undertaking”) given by D, the injunction was discharged.  By summons of 30 May 2018 (the “Variation Summons”), D sought an order that the terms of the Undertaking be varied, or alternatively for the provision of fortification by P.

2.In the meantime, P took out 3 sets of proceedings (HCMP 597/2018, HCMP 600/2018 and HCMP 601/2018) for certain Norwich Pharmacal relief (the “NP Proceedings”) in aid of HCMP 120.  D subsequently on 25 May 2018 and 4 June 2018 took out applications and sought to be joined as defendant in each of those proceedings (the “Joinder Applications”).

3.On 9 March 2020, the solicitors for both parties wrote in by way of a joint letter and informed the Court that D had been placed into liquidation in the Virgin Islands, and that the liquidators appointed had entered into an agreement with P in settlement of the action.  The terms of the settlement agreement had been reduced into a consent summons.  Parties sought an order in terms of the consent summons with a view to concluding the proceedings.

4.This Court on 17 March 2020 sought clarifications from the parties as to whether parties had reached any consensus in respect of the NP Proceedings. The parties apparently had not. Recent correspondence with this Court suggest that the position has remained substantially the same.

5.In the meantime, the consent order was on 18 March 2020 granted. Amongst others, parties agreed that there be no order as to costs in HCMP 120 notwithstanding any previous order.

6.Upon the settlement of HCMP 120, and whatever the original merits (or otherwise) of the Joinder Applications, they have been superseded by events, and have been rendered superfluous and entirely meaningless.  After all, the NP Proceedings were commenced for discovery in aid of HCMP 120, which has since been settled. 

7.The same may be said about the Variation Summons.

8.Whilst the merits of the Joinder Applications no longer call for adjudication, what the results should be are clear, that they should be dismissed given the intervening events and the settlement of HCMP 120. The tests for joinder under O.15, r.6 can no longer be satisfied.  In the circumstances, I make an order dismissing the Joinder Applications.  Consistent with the spirit of the terms of the consent order, I make a costs order nisi in each of the Joinder Applications that there be no order as to costs as between P and D.

Mr Ambrose Ho SC leading Mr Isaac Chan and Mr Jeff Chan, instructed by Li & Partners, for the Plaintiff

Ms Rachel Lam and Mr Jason Lee, instructed by K & L Gates, for the Intended 2^nd Defendant