Haitong International Products & Solutions Ltd v. Wang Yafeng

CACV 415 /2024, [2025] HKCA 821

On appeal from [2024] HKCFI 2331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 415 OF 2024

(ON APPEAL FROM HCA NO 124 OF 2023)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Kwan VP (giving the Reasons for Judgment of the Court):

1.This is the defendant’s appeal against the decision of Deputy High Court Judge Jonathan Wong handed down on 5 September 2024 (“Decision”)[1]. For ease of reference, we adopt the terms and expressions in the Decision.

2.The defendant issued the “First Summons” on 5 February 2024 seeking the following orders:

(1)  the “Order” made by Master Ho on 20 March 2023 granting leave to the plaintiff to issue and serve a concurrent writ of summons on the defendant out of the jurisdiction in Mainland China be set aside (“First Summons §1”);

(2)  the concurrent writ of summons and the service thereof (“Service”)  on 19 May 2023 through Mainland Judicial Authorities on the defendant pursuant to the Order be set aside (“First Summons §2”);

(3)  the final judgment dated 11 July 2023 (“Default Judgment”)  obtained by the plaintiff on the ground that the defendant did not give notice of intention to defend be set aside (“First Summons §3”);

(4)  a declaration that in the circumstances of the case the court should not exercise any jurisdiction it may have on the grounds that considering the best interests and convenience of the parties and the witnesses, and the judgment of the Beijing Financial Court dated 28 December 2023 (“PRC Judgment”)  which includes the same cause of action to which the present proceedings relate, as well as the pending appeal proceedings in the Mainland, the proceedings should continue to be conducted in the Beijing High People’s Court (“First Summons §4”); and

(5)  all further proceedings be permanently stayed forthwith on the ground of forum non conveniens in favour of the Beijing High People’s Court (“First Summons §5”).

3.The defendant issued the “Second Summons” on 17 June 2024 seeking leave to amend the First Summons to include a new paragraph 1(A), namely for leave to be granted to the defendant to give notice of intention to defend in the present action.

4.By the Decision, the judge granted leave to amend the First Summons as sought and dismissed the First Summons as amended.

5.In this appeal, the defendant seeks to set aside the Decision and for orders be made in terms of the First Summons §§1 to 3 and leave be granted to him to give notice to defend in this action.

6.By the respondent’s notice, the plaintiff seeks the following orders in the event that the appeal is allowed:

(1)  the extension of the validity of the writ up to the present and for a further period of three months from the date of the order to be made;

(2)  the Order be re-granted in the same terms;

(3)  service of the concurrent writ be dispensed with; and 

(4)  the Default Judgment be set aside on condition that the defendant pays into court the sum of US$467,307.41 (“Outstanding Sum”)  or its Hong Kong dollars equivalent and/or the sum of HK$1,785,940 as security for the plaintiff’s costs.

7.We dismissed the defendant’s appeal at the conclusion of the hearing, these are the reasons for judgment of the court.

Background

8.The relevant background matters as stated in the Decision are as follows.

(1)  The plaintiff’s claim

9.The writ in this action was issued on 27 January 2023.

“3.1 The Plaintiff’s claim as advanced in the Concurrent Writ of Summons is as follows.

3.2 Pursuant to, amongst others (1)  a side letter dated 12 July 2019 from the Defendant to, among others, the Plaintiff (‘Side Letter’), (2)  a representation letter dated 12 July 2019 from the Defendant to, among others, the Plaintiff (‘Representation Letter’), and (3)  a Pricing Supplement dated 22 July 2019 (‘Pricing Supplement’)  issued by the Plaintiff pursuant to a Programme Memorandum dated 30 March 2017 (‘Programme Memorandum’ and together with the Side Letter and the Representation Letter ‘Agreement’), the Defendant subscribed to 772,201 of 12-month USD Denominated Leveraged Participation Notes linked to the shares in NIO Inc due 2020 (‘Notes’), which were issued by the Plaintiff pursuant to a Structured Products Programme on a leveraged basis.

3.3 The total nominal amount of the Notes was US$2,702,704, under which the Plaintiff provided a loan of US$1,660,000 to the Defendant for the subscription.

3.4 On around 26 September 2019, a Collateral Posting Event, as defined under the Agreement, occurred. Between 26 September and 30 October 2019, in accordance with the terms of the Agreement, the Defendant was issued multiple written notices informing him of the Collateral Posting Event and that the LTV Liquidation Line, as defined under the Agreement, was triggered. The Defendant was required to transfer the Required Collateral Amount, as calculated under the Agreement, to the Plaintiff.

3.5 Under the Agreement, if the Defendant failed to transfer the Required Collateral Amount, the Plaintiff would be entitled to charge interest at 20% per annum, from (and including)  the date on which the Required Collateral Amount was required to be transferred to (but excluding)  the actual date of transfer, on the basis of daily compounding and the actual number of days elapsed (‘Interest Provision’).

3.6 On 30 October 2019, as the Defendant still failed to transfer the Required Collateral Amount to the Plaintiff, the Calculation Agent determined that a Mandatory Early Redemption Event had occurred. The Plaintiff then exercised its right under the Agreement to redeem the Notes and liquidated the underlying security, being 772,201 shares in NIO Inc. Following the liquidation, an amount of US$498,392.16 remained outstanding from the Defendant as of 30 October 2019.

3.7 On around 7 January 2020, the Defendant deposited US$50,000 to the Plaintiff, leaving an amount of US$467,307,41 outstanding (‘Outstanding Sum’)  taking into account the interest accrued since 30 October 2019 in accordance with the Interest Provision.

3.8  By the Default Judgment, the Defendant was adjudged to pay to the Plaintiff (1)  the Outstanding Sum, (2)  contractual interest from 7 January 2020 to the date of the Default Judgment and thereafter at judgment rate and (3)  fixed costs in the sum of HK$11,045.”

(2)  The Order

“4.1 The Plaintiff’s ex parte application for leave to serve the Defendant out of the jurisdiction was made by an affirmation [made on 13 March 2023][2] (‘Wong 1^st’)  of Mr Wong Wai Keung (‘Mr Wong’), a partner of the Plaintiff’s solicitors.

4.2 In so far as material to the present applications, Wong 1^st sets out the following matters:

(1)  The Agreement is by its terms governed by Hong Kong law (Clause 10(a)  of the Side Letter and page 5 of the Representation Letter);

(2)  The Agreement contains a term to the effect that the Hong Kong courts have non-exclusive jurisdiction (Clause 10(b)[3] of the Side Letter and page 5 of the Representation Letter);

(3)  The Notes are governed by, and shall be construed in accordance with Hong Kong law (Clause 17 of the Programme Memorandum);

(4)  The Defendant had commenced proceedings against a number of parties, including the Plaintiff, at the Beijing Financial Court in respect of matters relating to these proceedings (‘Mainland Proceedings’)  and a summary of the Defendant’s claims in the Mainland Proceedings is provided;

(5)  The Plaintiff, among others, was challenging the jurisdiction of the Beijing Financial Court (‘Jurisdictional Challenge’);

(6)  The Order 11 gateways relied on by the Plaintiff were RHC Order 1(1)(d)(iii)  and (iv), namely (1)  the Agreement is governed by Hong Kong law and (2)  the Agreement contains a term to the effect that the Hong Kong court shall have jurisdiction to hear and determine any action in respect of the Agreement.”

(3)  The Default Judgment

“5.1 The Plaintiff’s ex parte application for Default Judgment was made by Mr Wong’s 2^nd Affirmation dated 23 June 2023 (‘Wong 2^nd’). As noted above, the Defendant was served in the Mainland on 19 May 2023. In Wong 2^nd, it was pointed out that the time for the Defendant to file his Acknowledgement of Service expired on 16 June 2023.

5.2  As the Plaintiff’s claim is for a liquidated sum, the application for the Default Judgment was made pursuant to RHC Order 13, rule 1.  As set out at Hong Kong Civil Procedure 2024 Note 13/0/13, the requirements to be fulfilled in an application made under RHC Order 13 are, inter alia, (1)  that the writ has been duly served and (2)  that the time for acknowledgment of service has expired with no such acknowledgment having been returned.”

(4)  The Mainland Proceedings

“6.1 Although the Mainland Proceedings were commenced by the Defendant in December 2021, it was only on 14 February 2023 that the Plaintiff received the relevant documents from the Beijing Financial Court.

6.2 On 3 March 2023, the Plaintiff made the Jurisdictional Challenge.

6.3 On 28 April 2023, the Beijing Financial Court dismissed the Jurisdictional Challenge.

6.4 On 29 May 2023, the Plaintiff lodged an appeal against the dismissal of the Jurisdictional Challenge.

6.5 On 20 September 2023, the Beijing High People’s Court dismissed the Plaintiff’s appeal.

6.6 Following the dismissal of the appeal, the Plaintiff made a counterclaim in the Mainland Proceedings on 27 October 2023.

6.7 On 28 December 2023, by the PRC Judgment, the Beijing Financial Court dismissed the Defendant’s claim and allowed the Plaintiff’s counterclaim for the Outstanding Sum plus interest and costs.

6.8 On 10 January 2024, the Defendant lodged an appeal against the PRC Judgment.

6.9 It is pertinent to note from the above chronology the following matters:

(1)  At the time when the Plaintiff made the ex parte application for service out of the jurisdiction on 8 March 2023, the Jurisdictional Challenge was ongoing and had not been determined;

(2)  Between the Order (granted on 20 March 2023)  and the application for the Default Judgment (made on 23 June 2023), the Jurisdictional Challenge had been dismissed and the appeal therefrom was pending;

(3)  It was only after the Default Judgment had been granted (on 11 July 2023)  that the appeal from the Jurisdictional Challenge was determined (on 20 September 2023)  and the Plaintiff made its counterclaim in the Mainland Proceedings (on 27 October 2023).”

(5)  The defendant’s case on material non-disclosure

10.The defendant’s grounds for First Summons §§1 to 3 were premised only on material non-disclosure[4]. As regards First Summons §§1 to 3, the only issue for the judge’s determination was whether the plaintiff was guilty of material non-disclosure.

11.The defendant’s factual case on material non-disclosure was set out in WYF 1^st and is as follows:

“(1)  The Plaintiff had never properly disclosed to the Hong Kong court the progress of the Mainland Proceedings and in particular the dismissal of the Jurisdictional Challenge (§§43 and 45);

(2)  In the Plaintiff’s application for the Default Judgment, the Mainland Proceedings and the dismissal of the Jurisdictional Challenge were not mentioned in Wong 2^nd  (§46)[5].”

12.In WYF 1^st §47 and the defendant’s 2^nd affirmation dated 17 May 2024 (“WYF 2^nd”)  §14, it was emphasised that the duty to make full and frank disclosure is continuing.

The Decision

13.The judge’s reasoning for rejecting the defendant’s argument that the plaintiff was guilty of material non-disclosure was stated in §§9.14 to 9.25 of the Decision.  In summary, he held that the dismissal of the Jurisdictional Challenge was immaterial having regard to (1)  the existence of the non-exclusive jurisdiction clauses (“NEJCs”)  in the Agreement; (2)  the plaintiff’s disclosure of the existence and nature of the Mainland Proceedings in Wong 1^st; and (3)  the fact that when the plaintiff applied for the Default Judgment, the Mainland Proceedings had not passed beyond the stage of the Jurisdictional Challenge.

14.Once First Summons §§1 to 3 are dismissed, the Default Judgment stands and there are no “further proceedings” to be stayed in favour of the Beijing High People’s Court.  It follows that First Summons §§4 and 5 should also be dismissed.  In any case, given the NEJCs in the Agreement, the court should not embark on a Spiliada[6] balancing exercise, and, as noted in Noble Power Investments Ltd v Nissei Stomach Tokyo Co Ltd [2008] 5 HKLRD 631 at §71, the fact that the defendant has instituted proceedings in another jurisdiction (which in the present case have concluded by the PRC Judgment subject only to an appeal therefrom)  is not a strong or compelling reason to relieve the defendant from his bargain[7].  

This appeal

15.On behalf of the plaintiff, Mr Bernard Man SC[8] advanced two key reasons why the appeal should be allowed.  First, he submitted that the judge failed to recognise that the plaintiff has a continuing duty to make full and frank disclosure after the Order was obtained.  He asserted that the dismissal of the Jurisdictional Challenge was a material fact which the Hong Kong court should have been informed about.  Second, the judge failed to consider whether and if the dismissal of the Jurisdictional Challenge constituted a “strong or powerful reason”[9] why the NEJCs should not be upheld.  As matters later transpired, the plaintiff contested the Mainland Proceedings on its merits and succeeded on its counterclaim.

16.We turn to consider the specific grounds of appeal advanced by Mr Man.

Ground 1 (First Summons §§1 and 2)

17.The crux of the dispute before the judge, as in this appeal, turns on whether the dismissal of the Jurisdictional Challenge was a material fact which would have influenced the court when deciding whether to make the Order or deciding upon the terms on which the Order should be made[10]. The duty of full and frank disclosure extends to matters of fact or law that could reasonably be expected to be raised by the defendant against the application[11]. The test is not whether, if the matter had been disclosed, the ex parte court would nevertheless have made the order, but whether the matters not disclosed, being relevant, should have been in the scales[12].  The court takes a realistic view and draws sensible limits in applying the broad test of materiality, otherwise an impossible burden would be placed on applicants and their advisers and the court may open itself to “counter-abuse”.  The ultimate touchstone is whether the presentation of the application is fair in all material respects[13].

18.There is a continuing duty to make full and frank disclosure after an ex parte order in situations where the claimant discovers the ex parte order was obtained on a basis he knows that he could no longer support, or where the court has been misinformed, or has been given materially incomplete information.  Those facts should have been notified to the court, by way of the party returning to court to obtain clarification as to whether, in light of the new or altered facts, the ex parte order should be discharged or continued on a new basis.  The need to continue to make full and frank disclosure pertains while the proceedings remain on an ex parte basis, for until the party on the receiving end is fully and properly apprised of what had occurred on the ex parte application, it is under a continuing disability and could not have taken meaningful measure to protect its interests[14].

19.Mr Man’s arguments may be summarised as follows:

(1)  The judge erred in holding that the defendant’s complaints of material non-disclosure cannot be applicable to the First Summons §1, since those complaints relate to matters which arose only after the granting of the Order[15]. The plaintiff has a continuing duty to make full and frank disclosure after the Order was obtained.

(2)  Despite the NEJCs, it remains open to the defendant to demonstrate “strong or powerful reason” why the NEJCs should not be upheld.  The “strong or powerful reason” on the facts here is not that the Mainland Proceedings were in existence[16], but that the Jurisdictional Challenge had been dismissed.

(3)  The judge’s holding[17] that if the existence of the Mainland Proceedings would not have influenced Master Ho when granting the Order, the progress of the Mainland Proceedings and the dismissal of the Jurisdictional Challenge would, a fortiori, not have been material, is unsound.  This conclusion is not supported by any reasoning.  One “highly relevant” feature which would justify the court in not accepting jurisdiction where the parties had conferred non-exclusive jurisdiction on the court is whether there are already proceedings in a foreign country which involve overlapping issues, especially if they have been commenced by the party which subsequently seeks to sue in the court[18].  Even though the plaintiff did not commence the Mainland Proceedings, the plaintiff eventually brought a counterclaim after the Jurisdictional Challenge was dismissed.  There is little difference between the two scenarios.  The dismissal of the Jurisdictional Challenge is of much greater significance than the mere existence of the Mainland Proceedings, as this confirmed there would be foreign proceedings to determine the dispute despite the NEJCs, and is a fact which could reasonably be expected to be raised by the defendant.  If the plaintiff saw fit to disclose the existence of the Mainland Proceedings, it should a fortiori have disclosed the dismissal of the Jurisdictional Challenge and its intention at the time whether to contest the Mainland Proceedings on the merits if the Jurisdictional Challenge should fail[19].

(4)  The judge applied the wrong test in assuming that the dismissal of the Jurisdictional Challenge would not have influenced the court in deciding whether to make the Order or to seek assistance from the Mainland Judicial Authorities[20]. The dismissal of the Jurisdictional Challenge was material and relevant as this should have been in the scales, given that assistance from the Mainland Judicial Authorities is required to effect service in the Mainland.

(5)  In light of the dismissal of the Jurisdictional Challenge, the judge should have considered there was a real risk that the plaintiff would substantively contest the Mainland Proceedings on the merits, which would give rise to a risk of irreconcilable judgments.  Such risk has now materialised due to the PRC Judgment.

(6)  The plaintiff disclosed the Mainland Proceedings and the Jurisdictional Challenge when it applied for leave to serve a concurrent writ on the defendant out of the jurisdiction, rightly thinking that these were immaterial.  It is impossible to contend that the dismissal of the Jurisdictional Challenge was immaterial.

20.We do not agree with Mr Man that the dismissal of the Jurisdictional Challenge was a material fact which should have been in the scales when deciding whether to make the Order.  Our reasons are as follows.

21.As rightly submitted by Ms Queenie Lau SC for the plaintiff[21], a critical factor in this case is the presence of the NEJCs.  The relevant principles in Noble Power are set out by the judge in §8.7 of the Decision:

“(1)  There is no difference in principle between an exclusive jurisdiction clause and a non-exclusive jurisdiction clause to the extent that in both situations, the parties have agreed, if they are sued in the named forum, to submit to it (§29);

(2)  Where proceedings are instituted in the named forum (to which the parties have agreed to submit), the party who seeks a stay or otherwise to contest the jurisdiction or appropriateness of that forum, has a very heavy burden to discharge, since that party has by definition agreed contractually to submit to the jurisdiction. In other words, he is seeking to avoid a forum to which he has, by contract, agreed to submit (§31);

(3)  The extent of the burden can be put in several ways but the following provides a ready guide: strong or overwhelming reasons or exceptional circumstances must be shown, such as the existence of factors not contemplated by the parties at the time the relevant agreement was made (§36);

(4)  When there exists a non-exclusive jurisdiction clause and proceedings are instituted in the very forum to which the parties have agreed to submit, the existence or non-existence of connecting factors will be quite irrelevant, certainly much less powerful, unless it can somehow be shown that these may constitute strong reasons as to why the non-exclusive jurisdiction clause should not be enforced. One is really talking about factors that were not in the reasonable contemplation of the parties at the time the agreement was made (§40);

(5)  Thus, where a non-exclusive jurisdiction clause is in place and proceedings are commenced in the named forum and leave to serve out of the jurisdiction is required, the court’s approach when considering in an RHC Order 11 situation is as follows (§41):

(a)  The legal burden is on the plaintiff to demonstrate that the named forum is clearly the appropriate one for the trial of the action;

(b)  However, in discharging this burden, the plaintiff can do so simply by referring to the existence of a non-exclusive jurisdiction clause in which the parties have agreed to submit to the jurisdiction of the named forum. This is, after all, the contractual bargain;

(c)  It will then be for the defendant to demonstrate the existence of strong or powerful reasons why this bargain should not be upheld. The approach of the Court here is not simply of weighing up the existence (or lack)  of factors connecting the case to one or more jurisdictions;

(d)  Viewed in this way, from a practical point of view, the approach is akin to a situation where a plaintiff has instituted an action as of right;”.

22.The judge further summarised the principles mentioned in §71 of Noble Power[22] in §8.8 of the Decision:

“(1)  Although, in the exercise of its discretion, the Court is entitled to have regard to all the circumstances of the case, the general rule is that the parties will be held to their contractual choice of jurisdiction unless there are overwhelming, or at least very strong, reasons for departing from this rule;

(2)  Such overwhelming or very strong reasons do not include factors of convenience that were foreseeable at the time that the contract was entered into (save in exceptional circumstances involving the interests of justice); and it is not appropriate to embark upon a standard Spiliada balancing exercise;

(3)  The defendant has to point to some factor which it could not have foreseen at the time the contract was concluded. Even if there is an unforeseeable factor or a party can point to some other reason which, in the interests of justice, points to another forum, this does not automatically lead to the conclusion that the court should exercise its jurisdiction to release a party from its contractual bargain;

(4)  In particular, the fact that the defendant has, or is about, to institute proceedings in another jurisdiction, not contemplated by the non-exclusive jurisdiction clause, is not a strong or compelling reason to relieve a party from his bargain, notwithstanding the undesirability of parallel proceedings.  Otherwise a party to a non-exclusive jurisdiction clause could avoid its agreement at will by commencing proceedings in another jurisdiction.”

23.The consequence of the dismissal of the Jurisdictional Challenge meant that the Mainland Proceedings would proceed.  In other words, there would be parallel proceedings with overlapping issues, giving rise to the risk of conflicting judgments.  This however is not a strong or powerful reason or an exceptional circumstance why the contractual bargain to submit to the jurisdiction of the Hong Kong courts should not be upheld.  It is clear that judicial attitudes in favour of enforcing jurisdiction clauses have hardened.  Otherwise a party to an NEJC could avoid its agreement at will by commencing proceedings in another jurisdiction[23].  The cases have all emphasised that where proceedings are brought in the named forum of an NEJC, for a party who seeks to stay proceedings or contest the jurisdiction of the named forum, it is a very heavy burden to discharge, since that party has by definition agreed to submit to the jurisdiction of the named forum.  We do not think that burden was discharged by the dismissal of the Jurisdictional Challenge.  Thus, the situation on the dismissal of the Jurisdictional Challenge is really no different compared to the situation prior to the determination of the Jurisdictional Challenge, as, either way, there is no strong or compelling reason not to enforce the NEJCs.  The continuing duty to make full and frank disclosure was not contravened in this situation.

24.Ms Lau submitted that to discharge the burden mentioned above, the defendant must point to factors that were not in the reasonable contemplation of the parties at the time the agreement was made[24]. Mr Man argued there is no absolute requirement for the defendant to point to some factors he could not have foreseen or anticipated at the time of agreement to the NEJC[25]. We do not think this argument would assist Mr Man.  Even if there may be circumstances that were foreseeable but may still amount to strong or powerful reasons or exceptional circumstances not to uphold the NEJC, cases where the defendant can discharge the heavy burden by relying on factors that were foreseen or could have been foreseen at the time of the agreement must be quite rare[26]. The present case is plainly not one of them.

25.In light of the NEJCs in the Agreement, it is not appropriate to embark upon a standard Spiliada balancing exercise. Were it appropriate to do so, foreign proceedings that have not passed beyond the stage of the initiating process would not be relevant[27].  When Wong 2^nd was filed in support of the application for judgment in default of acknowledgment of service, the Jurisdictional Challenge was dismissed and the plaintiff had lodged an appeal against the dismissal.  The plaintiff had yet to divulge its substantive defence to the claims in the Mainland Proceedings.  Mr Man submitted that the dismissal of Jurisdictional Challenge meant that the parties’ case on the merits would have to be “imminently” divulged.  The fact remains that this did not happen until more than a month after the determination of the appeal against the dismissal of Jurisdictional Challenge.  It was only then and not before that the plaintiff submitted to the jurisdiction of the Beijing Financial Court and filed a counterclaim in the Mainland Proceedings.  We think it is fair to say that at the time Wong 2^nd was filed, the Mainland Proceedings had not passed beyond the stage of the initiating process and had not developed to the stage where they “have had an impact upon the dispute between the parties”[28].  We agree with the judge here[29].

26.Ms Lau is correct in her submission that when Wong 2^nd was filed, the situation remained substantially the same as that disclosed in Wong 1^st and there was nothing materially new to update.  We reject Mr Man’s argument that if the plaintiff saw fit to disclose the existence of the Mainland Proceedings, it should a fortiori have disclosed the dismissal of the Jurisdictional Challenge and its intention at the time whether to contest the Mainland Proceedings on the merits if the Jurisdictional Challenge should fail.

27.We have considered the cases relied on by Mr Man[30], it is not necessary to discuss them save to say that we do not agree with him it would make no difference that the Mainland Proceedings were commenced by the defendant and not by the plaintiff.

28.The judge did not fail to recognise that the plaintiff has a continuing duty to make full and frank disclosure after the Order was obtained.  He simply held, correctly in our view, that the dismissal of the Jurisdictional Challenge was not material.

29.For all the above reasons, Ground 1 fails.

Ground 2 (First Summons §3)

30.The judge’s dismissal of the First Summons §3 was based on the same reasons for dismissing §§1 and 2[31].  Mr Man relied on his submissions in respect of Ground 1, which we have rejected.

31.In addition, he submitted that the judge was wrong in distinguishing relevant dicta in Alan Chung Wah Tang and Kan Lap Kee (Joint and Several Liquidators of Wah Hin and Company Limited (in liquidation)  v Chung Chun Keung [2021] HKCFI 369 at §22, and in Bluesun Capital Ltd v Tewoo Group Finance No 3 Limited & Ors [2021] HKCFI 2040 at §53[32], as such dicta are of general applicability.  This is of little moment in light of our conclusions in Ground 1.

Ground 3 (First Summons §§4 and 5)

32.The judge’s dismissal of the First Summons §§4 and 5 was based on his dismissal of §§1 to 3[33]. Mr Man relied on his submissions in Grounds 1 and 2, which we have rejected.

Conclusion

33.We dismissed the defendant’s appeal as Grounds 1 to 3 are all rejected.  It is unnecessary to consider the respondent’s notice.

34.We have ordered the defendant to pay the plaintiff’s costs of this appeal.

Ms Queenie Lau SC and Mr Thomas Wong, instructed by Howse Williams, for the Plaintiff (Respondent)

Mr Bernard Man SC and Mr Shaun Elijah Tan, instructed by Anthony Siu & Co, for the Defendant (Appellant)