Cmf Global Quantitative Multi-asset Spc - Cmf Chaos China Growth Sp v. Blossom International Investment Holdings Ltd

HCA 1532/2023

[2025] HKCFI 5086

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1532 OF 2023

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D E C I S I O N

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1.This is the appeal of Blossom International Investment Holdings Limited (the “Defendant”) against the Order made by Master KW Wong on 10 June 2025 (the “Order”). The Master allowed the application of CMF Global Quantitative Multi-Asset SPC - CMF Chaos China Growth SP (the “Plaintiff”) for summary judgment, granted an order for specific performance, and struck out the Defendant’s counterclaim, save and except §§1-2 thereof allowing the Plaintiff to amend its summons seeking summary judgment filed on 4 March 2025 (the “Summons”).

Relevant background

2.The Plaintiff is a segregated portfolio Company.

3.The Defendant is a BVI company and (through wholly-owned subsidiaries) is the sole owner of Sigma Alternatives Portfolio SPC (“SPC”) incorporated on 14 June 2022.

4.Madam Yang is the sole shareholder and director of the Defendant and the ultimate sole shareholder of SPC. She is one of 2 directors of SPC, the other being Ding Zhiyi (“Mr Ding”). Mr Ding also serves as the Defendant’s CEO.

5.SPC later created a segregated portfolio, SPC Alternatives Portfolio SPC – Gawain Multi-Sector Fund SP (the “Fund”) and in October 2022, SPC issued a Private Offering Memorandum (the “PPM”) for potential investors to subscribe for Participating Shares in the Fund.

6.The chart below is a simplified organisation structure with which this matter is concerned:

7.On 16 December 2022, the Plaintiff subscribed for 12,800 Class A Participating Shares (“CMF Shares”) in the Fund.

8.The Agreed Chronology for April to June 2023 sets out the Plaintiff’s position on the circumstances giving rise to the sale and purchase agreement described in §9 below:

“The Plaintiff wished to exit from [the Fund].

It is the Plaintiff’s position that it had requested redemption of the CMF shares, and Sigma was not willing to process the redemption request by the Plaintiff. It was then proposed by Sigma that the Defendant, being an affiliate company of Sigma and was managed by the same group of people as Sigma, would repurchase the CMF Shares from the Plaintiff instead of going through the redemption process, with the consideration being the same amount invested by the Plaintiff into [the Fund].

It was ultimately decided between the parties that the Defendant would enter into a sale and purchase agreement with the Plaintiff for the Defendant to buy out the shares the Plaintiff held in the Fund.”

9.This resulted in the Plaintiff and the Defendant entering into a sale and purchase agreement on 23 June 2023 (the “SPA”) whereby the Defendant agreed to purchase the CMF Shares from the Plaintiff for $99,943,230.58[1] (the “Consideration”).

10.On 26 of June 2023, the Defendant paid the Plaintiff the sum of $2,343,230.58.

11.The balance of approximately $79.6 million of the principal amount has remained outstanding (the “Outstanding Sum”) for over 2 years, with default interest exceeding $28 million.

12.The Plaintiff filed the writ of summons in the present proceedings on 22 September 2023 and the Summons on 4 March 2025.

13.The Defendant obtained leave to amend its defence on 8 May 2025 (the “Defence Amendment Summons”).

14.The Master heard both the Summons and the Defence Amendments Summons on 10 June 2025 and made the Order that is the subject of this appeal.

Grounds of appeal

(1)  Damages are an adequate remedy

15.Ms Queenie Lau, SC and Mr Edward Tang, counsel for the Defendant, submitted that the remedies that the Plaintiff seeks are in substance monetary in nature. To obtain specific performance of a contract where the obligation is to pay money, it is incumbent on the Plaintiff to adduce evidence to justify why damages are an inadequate remedy: Avonwick Holdings Limited v Azitio Holdings Limited [2020] EWHC 1844 (Comm) at §§1038-1039.

16.It could have done so, for example, by adducing evidence that there are no buyers for the CMF shares or seek redemption of the CMF Shares pursuant to the provisions of the PPM. The Defendant contended that the Plaintiff failed to do either in the present case.

17.The general principles are well established. As stated in Snell’s Equity, 35^th Ed. (at §17-002), the equitable jurisdiction to grant specific performance is based on the inadequacy of the remedy law. In Cavendish Square Holding BV v Makdessi [2015] UKSC 67, Lord Neuberger stated that “the minimum condition for an order of specific performance is that the innocent party should have a legitimate interest extending beyond pecuniary compensation for the breach[2]” which is cited in Snell at §17-007 .

18.That citation is followed by the commentary that as a matter of principle, damages are inadequate where there is grave doubt about whether they will put the claimant into as good a position as if the contract had been performed. For example, where the assessment would have been “very difficult and prone to error” as well as “resource intensive and potentially costly”, or where the assessment would have been inherently speculative.

19.Then at §17-011, it is stated that:

“In most cases a monetary remedy of damages or the action for an agreed sum will be an adequate remedy for breach of a contract for the payment of money, but in exceptional cases such a contract may be specifically enforced.[3]”

20.Mr Ho referred to footnote 75 to §17-011 which reads:

“Although the vendor might regard specific performance as more convenient than retaining the property, reselling it and claiming damages, but this would not apply to an action for the agreed sum. The Court of Appeal in Doherty v Fannigan Holdings Limited [2018] EWCA Civ 1615 suggested, without discussion, that the vendor of shares could seek specific performance of the defaulting purchaser’s obligation to pay the price.

21.‘Price’ in that context was a liquidated sum as opposed to damages. Doherty concerned a plaintiff purchaser’s failure to pay for shares comprising 12.85% of a special purpose vehicle for a development project, where completion was to occur by exchange of funds for duly executed transfers. The Court of Appeal (at §43) considered that the defendant seller could sue the plaintiff purchaser for specific performance or damages. The Court did not say that because the failure was to pay a sum of money, the defendant seller is precluded from seeking specific performance. The point of the disjunctive ‘or’ is that the defendant seller has an option as regards remedy.

22.In response to the Defendant’s criticisms mentioned in §16 above, the Plaintiff referred to §16 of the 3^rd affirmation of Sun Yu (“Mr Sun”) dated 3 March 2025 (“Sun 3^rd”), the Chief Operating Officer of the Plaintiff. His evidence is to the effect that there is no public market for the CMF Shares as they are shares in the segregated portfolio of a fund incorporated in the Cayman Islands and that it would be difficult to determine their actual value and hence quantify the damages suffered by the Plaintiff.

23.The affirmation of Tsoi Ting Jessica dated 29 April 2025 (“Tsoi 1^st”) filed in response to Sun 3^rd did not challenge Mr Sun’s evidence in that regard.

24.The Defendant’s own evidence also confirms the absence of any real market for the CMF Shares. Under the rubric “Certain Risk Factors”, the PPM identified risks associated with the structure of the Fund, including the following[4]:

“Illiquidity of Participating Shares. It is not anticipated that there will be an active secondary market for the Participating Shares and it is not expected that such a market will develop. Participating Shares are not transferable without the approval of the Directors. Consequently, Shareholders may not be able to dispose of their Participating Shares except by means of redemption. Redemptions may be suspended in certain circumstances. The Fund may effect redemptions in specie or may establish a liquidating trust, account or entity to hold the relevant investments until they are liquidated at a later date. As such, a Shareholder may not receive cash proceeds on redemption or in the event that the Fund is terminated or may not receive cash proceeds in a timely manner.”

25.As regards exiting the Fund through redemption, the Plaintiff referred to the letter dated 8 June 2023 from the Plaintiff’s former solicitors to the Defendant (the “June 2023 Letter”) which gave an account of the genesis of the SPA. It shows that the purpose of the SPA was to enable the Plaintiff to exit the Fund. In pertinent part, it stated as follows:

“Redemption Requests by the Investors

7. Separately, R&H[5], on behalf of SP5 and CMF (i.e. the Investors), had on 6 June 2023 demanded that the Fund comply with the Investor's redemption requests ("Redemption Requests") exercised pursuant to the Subscription Agreement dated 16 December 2022, and the Memorandum and Supplemental[6] to [the PPM] both dated October 2022 in relation to their respective Participating Shares.

8. On the same day, your representative informed R&H that the Fund will comply with the Redemption Requests and will confirm the same in writing that evening.

9. However, no written response whatsoever was received by R&H (or the Investors) on the Redemption Requests either from you or the Fund.

Proposed Buyout

10. On 7 June 2023, the R&H received draft agreements for the sale and purchase of the Participating Shares ("Proposed Buyout") prepared by the Fund's lawyers (but not in the form of redemption of the Participating Shares as required under the Redemption Requests) with you as the intended Purchaser without further information or response whatsoever as to the Redemption Requests either from you or the Fund.”

26.The June 2023 Letter made it abundantly clear that the Plaintiff did make the prescribed redemption requests and had demanded that the Fund comply with those requests pursuant to the Subscription Agreement of 16 December 2022 and the PPM.

27.Sun’s 4^th affirmation dated 3 June 2025 (“Sun 4^th”) at §22 (1) states:

“(I) As mentioned in paragraphs 9(a) and (b)[7] of Sun 1^st and agreed by the Defendant in paragraph 11 of Yang 1^st, the SPA was entered into since SPC Alternatives Portfolio SPC (the ‘SPC’) was not willing to process the redemption of the CMF Shares requested by the Plaintiff. At the time, it was proposed by the SPC that the Defendant, being an affiliate company of the SPC and was managed by the same group of people as the SPC, would repurchase the CMF Shares from the Plaintiff instead of going through the redemption process, with the consideration being the amount invested by the Plaintiff into the Fund.”

28.Madam Yang was well aware of the June 2023 Letter since it was addressed to the Defendant. She referred to it in her affirmation dated 21 February 2024 (“Yang 1^st”) filed in response to the default judgment summons. After referring to the June 2023 Letter at §10, she stated (at §11) that

“…, as the relationship between the parties turned sour … the Plaintiff demanded an early exit from the Fund. It was ultimately decided between the parties that the Defendant would enter into a sale and purchase agreement with … the Plaintiff, for the Defendant to buyout the shares [the Plaintiff] held in the Fund …”

29.In Yang 1^st (at §13), Madam Yang sought to suggest that the Plaintiff had only made a “cursory reference” to the June 2023 Letter, criticising it for failing to provide sufficient details regarding the background leading to the execution of the SPA. However, she refrained from stating her version of events when she should have done so if different in material respects from that of the Plaintiff’s. That Madam Yang did not do so is significant.

30.I am satisfied on the evidence considered above that the Plaintiff has shown that there is no market for the CMF Shares. It has also made Redemption Requests pursuant to the PPM requiring the Fund to purchase the CMF Shares which SPC refused to process.

31.In those circumstances, I take the view that the Plaintiff has demonstrated that an award of damages for the Defendant’s breach would not be an adequate remedy and that specific performance is appropriate in the present case.

(2)  The Plaintiff’s inability to complete the SPA

32.The PPM stipulates that “Participating Shares may not be transferred without the prior written consent of the Directors. The Directors may withhold their consent without giving any reason for doing so[8].”

33.§24 of the Defendant’s written submissions states that the evidence shows that the Plaintiff “simply cannot transfer the CMF Shares as it had not obtained the prior written consent of the directors of SPC”. Ms Lau emphasised that at all material times SPC had two directors, Madam Yang and Mr Ding. There is no written consent from them.

34.The relevant Directors to whom a Redemption Request should be sent are not those of SPC as the Defendant alleges but of the Fund[9]. Be that as it may, the error makes no practical difference because Madam Yang and Mr Ding are also the directors of the Fund. That is hardly surprising given that SPC created the Fund as a receptacle to hold with the CMF Shares which it controls.

35.The evidence shows that the transaction was proposed by SPC to enable the Plaintiff to exit the Fund in circumstances where SPC did not want to go through with the redemption process initiated by the Plaintiff’s Redemption Requests. The “parties” agreed to the SPA as an alternative to redemption by the Fund. That is entirely consistent with and supported by the genesis of the SPA set out in the June 2023 Letter, the Plaintiff’s evidence (in §27 above) as well as Madam Yang’s evidence (in §28 above). In that context, the “parties” means not only the Plaintiff and Defendant but also SPC (who proposed the transaction) and the Fund. It is also the case that the interests of SPC and the Fund in agreeing to the SPA align.

36.Neither the Plaintiff nor the Defendant addressed the question whether, under the terms of the PPM, the Fund would have been obliged to redeem the CMF Shares if there had been no SPA as an alternative exit from the Fund. Reading the PPM as a whole, that would appear to be the necessary consequence. The PPM recognised that as the Participating Shares are not transferable without the approval of the Directors, “Shareholders may not be able to dispose of their Participating Shares except by means of redemption”.

37.§§34 and 35 of the Defendant’s skeleton criticised §22 (1) of Sun 4^th[10], alleging that Mr Sun had misquoted not only his own evidence but also that of Madam Yang in alleging that the proposal for the SPA emanated from SPC. §35.2 emphasised that Madam Yang only affirmed that the Plaintiff and the Defendant ultimately decide to enter into the SPA without addressing the reason for such a decision. §35.4 highlighted the fact that neither Sun 1^st nor Yang 1^st suggests that “it was SPC which proposed and orchestrated the SPA” and that what is stated in §22(1) of Sun 4^th which is at odds with Sun 1^st.

38.The Plaintiff’s position on those matters is shown in the Agreed Chronology (as set out in §7 above) which reflects Sun 4^th at §22(1). The Defendant’s criticisms are entirely misconceived. They ignore the fact that Mr Sun went on to explain in §22(2) to (4) the bases for what is stated in §22(1).

39.§22(4) exhibits the June 2023 Letter (“SY-19”) which is pivotal to the provenance of the SPA. It states clearly that the draft was prepared by “the Fund’s lawyers” and, as earlier noted[11], the Defendant /Madam Yang did not take any issue with that statement or challenge it with a different version of events. Further, in not putting forward her version of events (if different) despite the several opportunities to do so, Madam Yang must be taken to have accepted Mr Sun’s account and the assertion made in the June 2023 Letter that the draft of the SPA was prepared by “the Fund’s lawyers”.

40.Moreover, Madam Yang, (the ultimate owner of the Defendant, SPC and the Fund) caused the Defendant to enter into the SPA and endorsed it by signing it on the Defendant’s behalf. Indeed, §14.3 of the Defendant’s Amended Defence[12] which Madam Yang signed on 7 January 2025 referred to the Defendant’s willingness and intention to proceed with the SPA to completion.

41.The suggestion that the fact that the draft SPA emanated from “the Fund’s lawyers” does not mean that it was SPC who proposed and orchestrated the SPA ignores the reality that SPC runs and controls the Fund. Madam Yang and Mr Ding are the directors of both SPC and the Fund. Instructions to the Fund’s lawyers could only emanated from them.

42.Madam Yang cannot deny her consent to the SPA. By causing the Defendant to enter into the SPA, she obviously endorsed the transaction. Adopting Mr Ho’s terminology, she cannot “blow hot and cold”.

43.I now turn to consider the position of Mr Ding. He is the CEO of the Defendant and is also one of 2 directors (the other being Madam Yang) of SPC and the Fund. The Defendant relies on separate legal personality, suggesting (without explaining why) that procuring Mr Ding’s consent would require the directors of SPC to breach their fiduciary duties[13].

44.The Plaintiff focused on the commercial reality that Madam Yang and the Defendant control SPC and thus whether or not consent is granted.

45.As a director of SPC/the Fund, Mr Ding would have participated in giving instructions to the Fund’s lawyers to prepare the draft SPA. Given that the SPA was an alternative to redemption by the Fund to which the parties agreed, what conceivable ground could Mr Ding, as a director of SPC and the Fund, have for withholding consent? It would not be in the interests of SPC/the Fund which otherwise, under the PPM, would be obligated to effectuate redemption when served with the requisite Redemption Requests.

46.Rather, as he is also the Defendant’s CEO, Mr Ding would be in potential breach of his duty to the Defendant were he to wrongfully prevent the completion of the SPA. His consent is thus nothing more than a mere formality.

47.In my view, the defence based on the Plaintiff’s alleged inability to complete the SPA has no merit and raises no triable issue.

(3)  Order 14 is inappropriate

48.The point taken is that the Plaintiff used the wrong procedure: it ought to have proceeded under Order 86 instead of Order 14. It is said to be of importance because Order 86, rule 2(2) requires the summons to set out or have attached to it minutes of the judgment sought.

49.The Summons sought both specific performance of the SPA and judgment for interest not paid and, alternatively, the construction of Clause 3 of the SPA. The money claim falls within Order 14 and the construction issues fall within Order 14A. Plainly, part of the relief sought is not within Order 86.

50.In any event, proceeding under the wrong rule is not fatal. In Premier Fashion Wears Limited v Chow Cheuk-man [1994] 1 HKLR 377, Godfrey JA held (at 383, ll. 28-31) that

“in asking for an order from the court, a party is not bound to state under which rule or order he proposes to move. It frequently happens that parties move under a particular rule and then, when they find it is a wrong one, turn to another and an order is made.”

51.Fortune Asset Development Limited v De Monsa Investments Limited, unrep., HCA 167/2009, 21 August 2009 is an example of a case where the plaintiff used Order 14 for specific performance. Saunders J (at §§3-4) treated the issue as a mere formality to be addressed and made an order formalising the correct state of the papers.

52.In the same vein, in Fantasy Gift International Company Limited v Gold Luck International Limited, unrep., HCA 2548/2007, 9 September 2008, Burrell J (at §10) rejected the plaintiff’s complaint that an affirmation filed under Order 14 cannot support an Order 86 application on the basis that it was without merit.

53.As regards the absence of detailed minutes, at the hearing, the Plaintiff did provide a draft order setting out the precise terms sought. The draft was modelled on the order granted by Williams J in the Supreme Court of New South Wales in Re Hoju Jobs Pty Ltd (No 2) [2021] NSWSC 407 at § 40. That case concerned a specific performance order for the transfer of shares in a company for the return of the deposit.

54.It is not understood in what respects the Defendant claims that the Order caused prejudice or confusion when the Defendant was able to oppose it on substantive grounds. I do not consider there to be any merit in the procedural point taken.

(4)  Construction issues

55.The Defendant raised construction issues arising from the SPA which are considered below.

  (A) No breach of the SPA

56.The construction issues turn on the proper interpretation of Clause 3 of the SPA (Consideration) and Clause 4 (Completion Date and Completion):

“3. Consideration

The total consideration (the Consideration) payable by the Purchaser for the Shares shall be the sum of HKD 99,943,230.58, payable on or before 30 June 2023 ("Completion Date"). If any part of the Consideration is not paid by the Purchaser by 30 June 2023, an interest at the rate of 18% per annum shall apply to the outstanding amount from 1 July 2023 (the Interest). (Emphasis added)

4. Completion

4.1 Completion shall take place on Completion Date at the place as agreed between the parties in writing.

4.2 At Completion and subject to the receipt by the Seller of the Consideration and all outstanding Interest due and owing (if any) the Seller shall deliver, or cause to be delivered, to the Purchaser an instrument of transfer (the Share Transfer Form) with the date of Completion as the transfer date together with the share certificate(s) relating to the Shares (if any have been issued) or a customary indemnity in respect of any certificate which was issued but subsequently lost or destroyed and any other documents as reasonably requested by the Administrator.

4.3 At or before Completion the Seller shall procure the passing of the following resolutions of the directors of the Company:

(a) that the transfer of the Shares to the Purchaser shall be approved for registration; and

(b) that the Administrator of the Company will be instructed to update the register of participating shareholders of the Company to reflect the above transfer.

4.4 On signing this Agreement, the Purchaser shall deliver to the Seller

(a) a certified true copy of the resolutions of the board of directors of the Purchaser approving the terms of this Agreement;

(b) a certified copy of its certificate of incumbency;

4.5 On Completion, the Purchaser shall pay to the Seller the Consideration into such account and with such financial institution as the Seller may notify to the Purchaser from time to time by interbank electronic transfer of funds for same day value without deduction for bank or other similar charges before 4 pm on the date of Completion. Subject to the foregoing, each party shall bear its own bank charges, if any, in relation to the aforesaid transfer of funds.

57.The Defendant submits that Clause 3 provides the Defendant as purchaser with 2 alternative ways to perform its obligation to pay:

(1) to pay the Consideration on or before 30 June 2023 in which case no interest is payable by the Defendant; or

(2) to pay the Consideration after 30 June 2023, in which case the Defendant is also required to pay interest on the outstanding Consideration at the rate of 18% per annum.

58.The Defendant cited the following extract from Chitty on Contracts 35^th Ed. (at §25-007) in support:

Promises in the alternative Where a contractual promise is in the alternative, in that the promisor agrees to do one or more things, the legal effect of the promise depends on the kind of alternative involved: there may be a promise to perform in one of two or more alternative ways, where the form of the promise requires an election to be made; or there may be a primary or basic obligation to perform in one way unless the party who holds the ‘option’ chooses to substitute another way. Under the first kind of alternative promise, there is no primary or basic obligation and there must be an election of an alternative by one of the parties. The contract may provide which party may choose the alternative to be performed; in the absence of such a provision, the right to elect the alternative is impliedly vested in the promisor, the rule being that the party who is obliged to perform the first act may choose which alternative he wishes to perform. If the promisee is entitled to elect between the alternatives, he must give notice of his election, and until such notice has been given the liability of the other party does not arise. Once the person entitled to elect chooses the alternative to be performed, he is absolutely bound by his choice even though the chosen mode of performance afterwards becomes impossible to carry out.

59.The Defendant submitted that Clause 3 does not specify any consequence (other than the accrual of interest) in the event that the Consideration is not paid on or before 30 June 2023. Nowhere is it stated that failure to pay on that date constitutes a breach of the SPA. Nor does the SPA provide for any such right of termination should the Defendant fail to pay on or before 30 June 2023.

60.Clause 4 provides for “Completion”. The Defendant noted that Clause 4.2 makes no reference to the term ‘Completion Date’ and is silent as to when Completion is to take place. It further noted that Clause 4.5 deliberately omits reference to the term Completion Date and there is no long stop date. Therefore, the parties must have deliberately left the date of Completion open.

61.The Plaintiff disagrees. It takes the view that the meaning of the SPA on completion is clear: Clause 3 explicitly states that the Consideration is “payable on or before 30 June 2023”. That creates a mandatory obligation to pay by a specified date. The phrase “on or before” specifies a deadline, not a starting point.

62.Relevantly, the Plaintiff referred to other provisions of the SPA that reinforce its interpretation:

(1)  Clause 15.7 stipulates that “Time shall be of essence of this Agreement.” When time is of the essence, stipulated dates are conditions of the contract whose breach entitles the innocent party to terminate: Chitty at § 28-032.

(2)  Clause 4.5 states the Purchaser “shall pay” the Consideration “on Completion.” The mandatory “shall” confirmed an obligation, not an option.

(3)  The interest provision in Clause 3 compensates for late payment. The obligation to pay interest is a consequence of breach and not alternative method of the SPA.

63.As the Defendant readily acknowledges, the definition of the term “Completion Date” in Clause 3 cannot be reconciled with its interpretation of alternative ways to perform its obligation to pay.

64.The Plaintiff describes the effect of the Defendant’s interpretation of Clause 3 in the following terms[14]:

“… it would mean that [the Plaintiff] must hold on to the CMF Shares indefinitely, whilst [the Defendant] could decide if and when to pay. [The Plaintiff] could not sell to another purchaser, could not redeem through [SPC], and could not expect as to when (if ever) it would receive payment. In other words, the SPA would be an indefinite lock-up for [the Plaintiff]. On the other hand, [the Defendant] had a unilateral option over the CMF Shares, which might be exercised at any time, potentially hundreds of years later. For obvious reasons, no reasonable commercial party would agree to such a bargain. Neither is there any mechanism in the SPA for the parties to re-fix the completion date.

65.The commercial absurdity resulting from the Defendant’s interpretation is obvious and cannot be gainsaid.

66.The Defendant’s interpretation of its contractual obligations under the SPA is entirely removed from commercial reality and is inarguably unsustainable.

  (B) The No Consent Warranty

67.The No Consent Warranty as set out in §1.3 of Schedule 2 to the SPA reads as follows:

“1.3 The Seller is entitled to sell and transfer full legal and beneficial ownership in the Shares to the Purchaser without the consent of any other person.”

68.The Defendant contends that as the transfer of the CMF Shares requires the consent of the directors of SPC[15], the Plaintiff is in breach of Clause 5.1 of the SPA.

69.The Plaintiff submitted that, as a matter of contractual interpretation, the No Consent Warranty cannot be construed in the way suggested by the Defendant to self-engineer a breach by the Plaintiff.

70.Where the Defendant’s ultimate owner controls SPC whose consent is required, no third-party consent exists. Madam Yang’s complete control over the consent process is evident from the chart in §6 above.

71.Madam Yang is the sole shareholder and director of the Defendant, while the Defendant is the ultimate sole shareholder of SPC. That organisation structure existed before, during and after the SPA’s execution. Madam Yang and the Defendant have unfettered power to control and direct SPC’s affairs and give the required consent.

72.The Defendant has not adduced evidence to contradict Mr Sun’s account of how the SPA came about. Since Madam Yang and the Defendant control the consent mechanism, the Plaintiff submitted that Defendant cannot now invoke the SPC’s refusal to consent - a refusal engineered by a company under the sole ownership and control of the defendant and its ultimate - as a defence. I agree.

73.To adopt the Defendant’s interpretation would be contrary to the principle that a contract will be interpreted so far as possible in such a manner as not to permit one party to it to take advantage of his own wrong: Lewison on The Interpretation of Contracts, 8^th Ed., §§ 7.108-7.118.

74.On the Defendant’s interpretation, it would be impossible to reconcile Clause 4.3 (which requires the Plaintiff to obtain consent from SPC’s directors at completion) and the No Consent Warranty. The SPA could never be performed which could not have been the intended outcome. The only sensible reading is to treat the Clause 4.3 requirement as an exception to the No Consent Warranty.

Disposition

75.For the reasons stated above, I find no merit in any of the grounds raised in this appeal. There is no arguable defence to the Plaintiff’s claim. The Counterclaim must also be struck out.

76.The appeal is dismissed.

77.I make an order nisi of costs in favour of the Plaintiff, with certificate for 2 counsel, such costs to be summarily assessed and payable forthwith.

78.I further direct that:

(i)  the Plaintiff do lodge and serve its statement of costs within 14 days after the date of this Decision;

(ii)  the Defendant do have leave to lodge and serve its list of objections (limited to 2 pages) within 14 days thereafter;

(iii)  the Plaintiff do have leave to lodge and serve its reply (if any) (limited to 1 page) within 7 days thereafter;

(iv)  there be summary assessment of costs by paper disposal without the need for an attendance.

Mr Ambrose Ho SC, Mr Vincent Lung and Mr Calvin Ng, instructed by Messrs. King & Wood Mallesons, for the Plaintiff

Ms Queenie Lau SC and Mr Edward Tang, instructed by Messrs. NEO Solicitors LLP, for the Defendant