Cinda Fund Management Co Ltd v. Yihua Lifestyle Technology Co Ltd and Another

HCMP 370/2023

[2023] HKCFI 1110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLEANOUS PROCEEDINGS NO 370 OF 2023

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D E C I S I O N

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1.Concerning the point about variation of §11 of the injunction, Mr Lam has ably pointed out a distinction between the position of D1, against whom the plaintiff has obtained judgment in the mainland, and D2, who is under a Chabra injunction. It could be breach of the rights of D2 to deprive them of the opportunity to defend the injunction due to lack of access to funds.

2.Ms Tong has pointed out to this court that the defendants, in their belated disclosure, have not even disclosed bank accounts containing funds to which the defendants could have recourse in order to pay for their legal and business expenses.

3.I have considered this. The defendants appears to have no answer as of today. However, Mr Lam has also explained to the court the pressing circumstances under which the defendants have been served the injunction order and the disclosure order, and their disclosure at the last evening at pressing circumstances.

4.At this stage where the evidence is incomplete, I do not think it is fair to deprive the defendants the opportunity of obtaining sums, if they have any available, in order to defend the injunction.

5.In the premises, I am not minded to make a variation order today to remove §§11 and 12 of the injunction. In order to expedite the matters, I will give a timetable for the defendants to take out the necessary summons for variation, so that the matter can move forward as quickly as possible.

6.So, looking at the draft order:

(1)  §1, it should be deleted.

(2)  §2, the injunction order shall be continued until substantive determination of the summons or until further order of the court.

(3)  Time for the defendants to comply with §§7 and 8 of the injunction order be extended to 4:30 pm on 21 March 2023.

(4)  Time for the defendants to serve affidavits on the Plaintiff’s solicitors pursuant to §9 of the injunction order is extended to 4:30 pm on 28 March 2023.

(5)  The defendants shall file affirmation evidence in opposition to the summons within 28 days and then the plaintiff shall file evidence in reply if any, within 28 days thereafter.

(6)  No further affirmation be filed without leave.

(7)  The summons be fixed for substantive argument with two days reserved in consultation with the diaries of Ms Sara Tong, SC, and Mr Douglas Lam, SC within seven days from today.

(8)  The defendants be at liberty to take out a summons for variation of §11 of the injunction order and/or to apply for spending reasonable sum on business expenses, supported by affidavit evidence, within 14 days.

(9)  The Plaintiff is at liberty to file and serve affirmation evidence in opposition within 14 days thereafter.

(10)  The Defendants are at liberty to file and serve affirmation in reply.

(11)  No further affirmation is to be filed without leave.

(12)  Costs are reserved.

(13)  Liberty to apply.

Ms Sara Tong, SC, leading Ms Esther Mak, instructed by P C Woo & Co, for the Plaintiff

Mr Douglas Lam, SC, leading Mr Charlie Liu, instructed by Mung, for the 1^st and 2^nd Defendants