Liquidity Technologies Ltd and Another v. Mark David Lamb and Others

HCA 1646/2023

[2026] HKCFI 3202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1646 OF 2023

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D E C I S I O N

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Introduction and Background

1.By a Decision dated 2 April 2026: see [2026] HKCFI 1758 (“the Decision”), I granted judgment for a part of Ps’ claim and unconditional leave to defend in respect of all other claims. The Decision should be read in full to understand this decision. For ease of reference and consistency, save as otherwise indicated, I shall adopt the same definitions and abbreviations herein.

2.By Summons dated 16 April 2026 (“the Summons”), Ps apply for leave to appeal against the Decision. A number of grounds have been set out in the Draft Notice of Appeal (“Draft NOA”) annexed to the Summons.

3.At today’s hearing of the Summons, Mr Clark, solicitor advocate, appeared for Ps. Mr Lamb did not appear but had filed two written submissions which I have considered. I have also considered Mr Clark’s written submissions and his oral submissions.

Applicable Principles

4.The test for granting leave to appeal against an interlocutory order of the Court of First Instance is trite. Under s.14AA(4) of the High Court Ordinance, Cap. 4 (“HCO”), leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard. Reasonable prospects of success involve the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”. See e.g. SMSE v KL [2009] 4 HKLRD 125 at §17.

5.Moreover, where a judge has made an order giving unconditional leave to defend on the basis that there are triable issues of fact, it is exceptional for the Court of Appeal to disturb the finding. The position is different where questions of law are concerned, because the view of the judge below is either correct or not correct, whereas the judge’s view on facts are by their nature capable of wider spectrum of correctness or reasonableness. Where the judge has arrived at a reasonable view of the facts, the Court of Appeal will rarely disturb the result. See: Cloud Rosy Ventures Limited v Sun Shaofeng & Anor [2024] HKCA 250 at §33; and Treewell Development Ltd v Tsang Chun Wah [2003] 4 HKC 401 at §§10‑11.

Discussion

6.Ground 1 states that I erred to place improper reliance on Ps’ Skeleton that was lodged for the hearing before me on 12 January 2025 (“the Hearing”). In the Decision, §50 I referred to §§12-13 of Ps’ Skeleton which stated:

“12. P’s claim against D1, D3 and D4 can be divided in three parts:

(a) Actions in relation to the establishment of OPNX a cryptocurrency exchange and the ‘bridging’ of P1’s business to OPNX.

(b) Actions in breach of duty that do not relate to OPNX.

(c) Actions after Mr Lamb was removed as a director.

13. Partial summary judgment is sought in relation to (b) and (c). The claims are detailed in Gourov 6^th [A2/14/164]. They are summarised as follows: …”

(The rest of the paragraph 13 was set out as italicized in the Decision, §23.)

7.In the Draft NOA, it was stated that those paragraphs merely set out the “categorisation of claims under the ASOC”. It was submitted that in the Decision, I erred to rely on those to hold D had raised a bona fide defence to P’s claim re: the Hodlnaut transfer (see §50), the License Agreement (see §53), the Fireblocks Assignment (see §56), Lamb’s acts after his removal as a director of P1 (see §59) and the 6,106,188.14 FLEX tokens transfer (see §60).

8.I cannot see how I can erred to have regard to what was clearly stated in Ps’ Skeleton that partial summary judgment is only sought in relation to actions in breach of duty that do not relate to OPNX and actions after Lamb was removed as a director. If Mr Clark is seeking to detract from the first sentence of paragraph 13 of Ps’ Skeleton, he should not be able to do so now.

9.Furthermore, for the avoidance of doubt, I did not refuse to grant summary judgment in respect of the other claims because of the “mere fact that D1 claimed a matter was related to the bridging of OPNX”. With respect, that appears to be a misreading of the Decision.

10.In respect of §50, given that summary judgment is not sought in respect of “actions in relation to the establishment of OPNX and the bridging of P1’s business to OPNX”, I took the view that it must have been accepted that the claim by Lamb that OPNX was established to bridge P1’s business raised triable issues. To the extent that Lamb’s case is that the Hodlnaut transfer was to fund OPNX operations and was used in the restructuring operations, this clearly forms part of Lamb’s case of the bridging of P1’s business to OPNX which has to be tried. Whilst I had expressed my reservations whether the contemporaneous document supports Lamb’s case, I did not take the view that it is entirely not credible. Besides, as set out in the Decision at §25(4), in deciding whether there is a fair or reasonable probability of the defendant having a real or bona fide defence, the court does not isolate each factual issue and consider whether the defendant’s story on that issue is credible but must look at the whole situation. However, the whole situation was not before me when it was accepted that the establishment of OPNX and the bridging of business from P1 to OPNX should be explored at trial. I therefore took the view that there is reason for the claim re: the Hodlnaut transfer to go to trial to be tried together with the claim on the establishment of OPNX and bridging of P1’s business to OPNX.

11.Similarly for §53, although I pointed to the internal contradiction, internal inconsistency and lack of contemporaneous documents or witness to support Lamb’s case, given his case that the consideration for the License Agreement was that CoinFLEX would become a shareholder of OPNX, as this relates to the bridging of P1’s business and Ps were not seeking summary judgment for breach of duty that relates to OPNX, which is an admission that they are issues for trial, I took the view that the claim re: the License Agreement should be tried together with the other issues relating to OPNX and was not ruled out by me as incredible.

12.As for §56, again, even though I expressed my skepticism whether Lamb had a bona fide defence to the Fireblocks Assignment claim, but at the time he was still a director (see §55) and Lamb claimed that the agreement was for handling funds for customer who had migrated from CoinFLEX to OPNX as part of the restructuring. Since P was not seeking summary judgment on actions in relation to the bridging of P1’s business to OPNX and indicated they would only seek judgment for actions after he was removed as director, I took the view that this issue should be tried. I also had regard to the question of Lamb’s authority to act at the time on behalf of P1 was admittedly a matter to be explored at trial according to Gourov 7^th.

13.As for §§59 and 60, whilst they concern the claims against Lamb after he had been removed as a director of P1, given his defence that the domain name and infrastructure systems belonged to OPNX as a result of the restructuring, and the FLEX tokens transfer was part of OPNX’s operations, these matters plainly relate to OPNX which would be explored at trial, so these claims should be also tried.

14.Ground 2 states that I erred in the Decision, §50 to refuse to enter judgment for the Hodlnaut transfer. I have already explained above why I did not do so. I did not find that the mere fact that Lamb alleged a defence relating to the bridging of P1’s business to OPNX was sufficient to give rise to a triable issue.

15.Ground 3 states that I erred in the Decision, §§53-54 to refuse to enter judgment on the License Agreement claim. I have explained above my reason for not doing so. In so far as it submitted that because of the entire agreement clause in the License Agreement, any collateral warranty is to have no legal effect relying on the case of Edward Wong Finance Company Limited v Profit Making Investment Limited & Ors (Unrep) CACV 1049/2000, 4 May 2001 which was not cited at the Hearing, it does not demonstrate that I erred in not entering judgment on the Licence Agreement claim. The relevant question is not the enforceability of the License Agreement but the existence of the collateral agreement claimed by Lamb. Furthermore, I did not refuse to enter judgment simply based on Lamb’s bare assertion that his defence related to the establishment of OPNX and the bridging of P1’s business to OPNX.

16.I also do not accept that I erred to hold because of the “unclean hands” allegation made by Lamb which plainly raised factual matters which should be investigated at trial, the granting of declaration and permanent injunction summarily was inappropriate (see Decision, §54).

17.In resisting the summary judgment application, Lamb had raised the doctrine of “unclean hands” and in Lamb’s skeleton for the Hearing he had cited the case of Argyll v Argyll [1967] Ch 302 for the proposition that Ps could not seek equitable remedies namely, declarations, injunctions, specific performance, when Gourov had not come to court with clean hands. He also raised allegations of acquiescence and estoppel by conduct against Gourov. As a litigant in person, one would not have expected him to cite the more relevant Hong Kong authorities on point. I therefore produced the two Court of Appeal cases just before the lunch adjournment and expressly asked Mr Clark to address those authorities after lunch. When the Hearing resumed in the afternoon, Mr Clark did seek to address those cases by submitting that no mandatory injunction was being sought in the present case but rather it was a negative injunction. Nonetheless, I did make clear to him those cases were cited for their general principles that where the relief sought was an equitable or discretionary one, and matters such as acquiescence or estoppel are facts-sensitive, summary judgment may not be appropriate. The foregoing accords with the court record of my clerk and the DARTS recording as to what took place at the Hearing. I regret to say that it is wholly disingenuous for Mr Clark in his written submissions to say that I had cited the two cases in the Decision which were not mentioned at the Hearing and that Ps have not been given an opportunity to address them.

18.Even Mr Clark’s submissions now and reliance on Morn Creations Limited v Gap Limited (unrep) HCA 1882/2014, 29 September 2016, which was not relied upon at the Hearing and concerned an application for default judgment where there was no defence filed, it is not demonstrated that the binding Court of Appeal decisions cited by me, do not support that proposition I cited them for and therefore I erred to have considered this as an additional factor not to enter judgment on the License Agreement claim.

19.Ground 4 states that I erred to refuse summary judgment on the Fireblocks Assignment in the Decision, §56. I have explained my decision above. Mr Clark’s submissions that Gourov 7^th has also asserted that D1 did not obtain board approval and no consideration was provided do not demonstrate that I erred to take the view that this claim should also be tried. The point I was making with reference to Gourov 7^th was that the issue of authority was recognized as a matter for trial but I was not accepting Lamb’s case.

20.Ground 5 states that that I erred in refusing summary judgment on the injunctive relief in the Decision, §§59 and 61. I did not merely refuse summary judgment because of Lamb’s assertion the accounts were OPNX. As for the submission that there is no need for a trial to grant an injunction that Lamb gives access to Ps’ own records, I believe I have already explained above why injunctive relief was inappropriate. As for not granting damages to be assessed, this claim is necessarily tied to Ps’ passing-off claim and whether the permanent injunction should be granted, and given Lamb disputed any damages were suffered as a result of the email signature left over, I cannot see how I erred in not granting summary judgment for damages to be assessed. It would hardly be satisfactory for there be an assessment of damages over one issue out of many that will have to be determined at trial.

21.Ground 6 states that I erred in refusing summary judgment on the November 2023 FLEX transfer, in the Decision, §60. I have explained above my reason. I did not hold the mere fact that Lamb put forth a defence in relation to the establishment of OPNX and bridging of P1’s business to OPNX as sufficient to give rise to triable issues. As to the suggestion that my findings were inherently contradictory in that if D1 was making a transfer for an OPNX user then he must have authorized or procured the transfer, I made no such finding. I expressly stated whether he actually or personally initiated, authorized or procured the transfer is not a matter to be resolved on affidavit evidence.

22.In all, I am of the view that the intended appeal has no reasonable prospects of success.

Disposition and Orders

23.Accordingly, the Summons is dismissed. I see no reason why costs should not follow the event. Mr Lamb had submitted that costs should be ordered on an indemnity basis. Whilst I take seriously the unfounded allegations against me and misrepresentation as to what took place at the Hearing, nonetheless I accept Mr Clark’s apologies and I will order that Ps should pay D1’s costs of and occasioned by the Summons, on a party to party basis, to be taxed, if not agreed.

Mr Douglas Clark, Solicitor Advocate of Messrs. Tanner De Witt, for the 1^st and 2^nd Plaintiffs

The 1^st, 3^rd and 4^th Defendants were not represented and did not appear