Saras Gopi also known as Saraswathi Gopalakrishnan v. Bina Deegan also known as Bina Cunningham also known as Bina Gopi

HCA 3075/2015

[2025] HKCFI 5441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3075 OF 2015

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(By Original Action)

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(By Counterclaim)

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D E C I S I O N

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Introduction

1.The entire original action and the counterclaim as between Ms Bina Deegan (the plaintiff by counterclaim) and her mother, Ms Saras Gopi (the 1^st defendant by counterclaim) have been disposed of. I shall call these two parties “Bina” and “Mother” respectively.

2.What is left is the counterclaim as between Bina and her brother, Mr Subash Gopi (the 2^nd defendant by counterclaim). I shall call the latter “Subi” in this decision.

3.It is common ground that the only live issue in the counterclaim is Bina’s claim in respect of Industrial & Technical Entrepreneurs Limited, a company incorporated in Hong Kong (“ITEHK”).

4.Bina’s pleaded case is as follows:

(1)  Since late 1998, she held one of the two shares in ITEHK.

(2)  ITEHK owned a property at 14^th Floor, 131 Sung Chiang Road, Taipei, Taiwan.

(3)  In about July 2007, Subi wrongfully misappropriated her one share to himself by forged signatures without her knowledge or consent.

(4)  She has suffered loss as a result.

(5)  She claims reliefs including account of profits and/or damages.

5.On the other hand, Subi’s pleaded case is that:

(1)  There has been in place a family arrangement under which Bina was to hold the share as nominee only, and the share was to be transferred to the original owner at a later stage.

(2)  The transfer of the one share in 2007 was effected with the knowledge of Bina.

(3)  In any event, the Taipei property was not owned by ITEHK, but by another entity in Taiwan.

6.The relevant pleas can be found in the re-amended defence and counterclaim at paras 72 to 77, the re-amended reply and defence to counterclaim at paras 29 to 32, and the rejoinder and reply to re-amended defence to counterclaim at paras 16 to 18.

7.Before the court today are two summonses:

(1)  the summons taken out by Bina dated 5 December 2024 for specific discovery; and

(2)  the summons taken out by Subi dated 29 April 2025 also for specific discovery.

Legal principles

8.The rules governing specific discovery under Order 24 are well established. I refer to the commentary in Hong Kong Civil Procedure 2025 at 24/7/2 and 24/8/1.

Bina’s summons

9.Bina seeks three categories of documents, all concerning the Taipei property.

10.According to Bina, the property is the only asset which ITEHK owns as far as she knows. In 2024, she discovered from public records that the property had been sold on or around 25 June 2021 for the sum of NT$84.5 million (approximately US$2.6 million). She therefore now seeks documents regarding the Taipei property as they are directly relevant to the quantification of her damages claim.

11.Category 1 seeks ownership and title deeds to the Taipei property. The scope of this category has been narrowed down by Bina in the course of today’s hearing. I will come back to this point later.

12.Category 2 seeks transaction documents relating to the sale.

13.Category 3 seeks documents and in particular bank transfer documents showing receipt of consideration from the sale. Again, this category has been cut down to confine to documents within the time period of around 25 June 2021.

14.For category 1, a previous order was made on 13 May 2021 against Subi for discovery of documents relating to the sale and purchase of the Taipei property in 1989.

15.Mr Justin Ho, appearing with Ms Celeste Chan for Bina, submits that Subi’s compliance with that order has been piecemeal and incomplete. In view of the recent sale, Bina has to take out another discovery application seeking a wider class of documents concerning the property.

16.I agree with the submission that Subi’s compliance with the above order is not satisfactory.

17.Previously, Subi claimed in his affirmations that the documents ordered were lost due to typhoon damage or “not with lawyers, mortgage bank or the Taiwan Land Registry”. I quote from para 27 of his 6^th affirmation:

“The documents concerning the sale and purchase of the ITE Taiwan office are not within my possession, custody or control. As mentioned previously, many documents were destroyed as a result of typhoon damage. I also confirm that documents are not with lawyers, mortgage bank or the Taiwan Land Registry.”

18.Notwithstanding this previous confirmation, Subi filed his 3^rd supplemental list of documents just last week disclosing a purchase contract dated 27 March 1989 in respect of the Taipei property. According to Subi, this document was obtained only recently by him from Baker & McKenzie in Taiwan. This purchase contract comes squarely within the ordered category, but it is not disclosed until more than four years after the order was made.

19.This recent discovery by Subi casts serious doubt over his earlier affirmation that the documents were not in his possession, custody or control, and seems to undermine his unqualified confirmation that the documents ordered were not “with lawyers”. Therefore, in my view, it is open to Bina to seek discovery under category 1.

20.Now, Mr Ho accepts that there is an overlap between category 1 and the previously ordered category, and that those documents which come within the previously ordered category should now be carved out from category 1. I shall proceed with my discussion on that basis.

21.For the three categories, I am satisfied that Bina has established a prima facie case of existence, possession and relevance. The public records relied on by Bina have been exhibited as evidence before the court. The fact that the recent sale had gone through supports Bina’s position that the documents now sought exist and are in the possession of Subi. They are also plainly relevant to the issue of quantum.

22.There is no serious or meaningful opposition put up by Mr Andrew Hart, of Messrs Hart Giles, who acts for Subi in the counterclaim. Jurisdiction to order discovery is therefore established. It is then for Subi to show why disclosure is not necessary for the fair disposal of the counterclaim or for saving costs. On this, nothing has been said by Mr Hart. Therefore, Bina’s discovery application as narrowed down should be granted.

Subi’s summons

23.Subi seeks 35 items of documents under three categories. It is plain that the request should be rejected.

24.For category 1, there is a dispute as to whether, as drafted, the wording covers only the 28 items, mainly emails and letters, listed in the summons, or it seeks generally all documents during the period from 1988 to 2016 regarding ITEHK.

25.I consider that, objectively interpreted, the wording of category 1 raises a request generally for all documents within that period and in relation to ITEHK, with the 28 items given as examples. See the words at the end of the description: “including in particular”.

26.That said, however, I accept Mr Ho’s submission that apart from the 28 emails listed, Subi has failed to establish a prima facie case of existence. The time period in question spans over 28 years. The general description refers to “all documents” and “communications” generally. Mr Hart has not been able to articulate any basis to say that these documents exist. Hence, insofar as Subi is seeking documents other than the 28 items under category 1, that request should be refused.

27.Returning to the 35 discrete items listed in the summons, I would say the following.

28.First, Subi accepts that 21 out of the 35 items are identical to the items sought in a failed discovery application made by Subi in December 2022. The decision dismissing that application can be found at [2023] HKCFI 2666. There is no reason why these requests should be allowed to be re-opened. For the record, these items are items 1 to 7, 18 to 19, 21 to 28, 32 to 35.

29.Second, 25 out of the 35 items have already been disclosed in either Bina’s or Subi’s lists of documents. To make a further order for discovery against Bina serves no purpose and is therefore unnecessary. There is simply no justification put forward by Subi for further disclosure. For the record, these items are items 1 to 20, 23, 25 to 28.

30.Third, the remaining items not covered above, namely items 29 to 31, relate to Mother’s mental capacity. Mr Hart submits that these documents are relevant to potential issues surrounding the discontinuance of the original action and the counterclaim concerning Mother and Bina.

31.But those issues, if any, have nothing to do with ITEHK. The documents now sought are plainly irrelevant to the issue of quantum of Bina’s claim, which is the sole issue remaining in dispute in this counterclaim.

Conclusion

32.For the above reasons, I allow Bina’s discovery application and make an order in terms of her summons, save that categories 1 and 3 should be narrowed down as discussed above[1]. I dismiss Subi’s summons.

33.This case was directed to be docketed to a judge due to the estimated trial length under Practice Direction 5.7. As the dispute now remaining is a narrow one with no apparent complexity, I would direct that the counterclaim be reverted back to master for case management. Parties should restore the CMS hearing before a master within 14 days.

(Submissions re costs)

34.This is my decision on costs.

35.Bina do have costs of both summonses, including all reserved costs, with a certificate of one counsel, summarily assessed at $360,000, payable by Subi on or before 19 November 2025.

36.An indemnity costs order is justified. I take into account the following:

(1)  For both summonses, the affirmations filed by Subi (which, according to Mr Hart, were drafted by Subi himself) are lengthy, unfocused, and repetitive. The contents revolve around the merits of Bina’s counterclaim, rather than the merits of the discovery summonses. The bulk of the affirmations are therefore irrelevant to the discovery applications. The time spent by Bina and the court to review them are simply wasted for no practical purpose.

(2)  For Subi’s summons, requests for a lot of the items have been dismissed previously. Subi’s attempt to re-open them is abusive conduct and leads to a waste of parties’ time and also a waste of the court’s resources.

37.Hence, the indemnity costs order.

Mr Justin Ho and Ms Celeste Chan, instructed by MinterEllison LLP, for the plaintiff (by counterclaim)

Mr Andrew Hart, of Hart Giles, for the 2^nd defendant (by counterclaim)

Appendix

IT IS ORDERED that: -

1.  The 2^nd defendant (by counterclaim) do within 28 days from the date hereof file and serve an affidavit identifying all documents within the classes specified in Schedule A hereto which are or which have at any time been, in the possession, custody or power of the 2^nd defendant (by counterclaim), and if not now in his possession, custody or power when he parted with each such document and what has become of them.

2.  There be inspection of all documents or classes of documents referred to in the affidavit to be filed pursuant to paragraph 1 above within 7 days thereafter.

Schedule A