Gaincourt Ltd and Another v. Kingston Finance Ltd

HCMP 419/2025

[2026] HKCFI 3533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 419 OF 2025

____________

____________

____________

_______________

J U D G M E N T

_______________

1.Before me is an application to dismiss the Originating Summons issued by the 1^st and 2^nd Plaintiffs and to release the Defendant from certain undertaking it had given to Court at the hearing on 21 March 2025 (“Undertaking”).

2.At the hearing, Mr Sunny Chan appears on behalf of the Defendant. Also in attendance is Ms Jessica Wu solicitors for the 1^st and 2^nd Plaintiffs. She informs me her firm has applied to cease to act but has not been able to complete the relevant procedures before today’s hearing, so she has appeared this morning purely to discharge her professional obligations.

3.Under the Originating Summons, the 1^st and 2^nd Plaintiffs applied for injunction to inter alia restrain the Defendant from presenting a winding up petition against them based on a judgment debt in the sum of HK$102,140,287.67 (“Judgment Debt”).

4.The Undertaking is in the following terms: “the Defendant giving an undertaking to the Court that it will not present winding up petitions against the 1^st and 2^nd Plaintiffs based on the Statutory Demands served on the 1^st and 2^nd Plaintiffs on 28^th February 2025 until the determination of the Intervener’s, i.e. Yang Linda, appeal in HCMP 369/2024 or further order of the Court”.

5.The Judgment Debt arose from proceedings in HCMP 369/2024. In those proceedings, the Defendant sued the 1^st and 2^nd Plaintiffs and a Gao Gunter (“Gao”) for the return of a HK$80 million loan advanced by the Defendant to the 1^st Plaintiff, which was secured by a legal charge over a property in Gough Hill (“Property”) granted by the 1^st Plaintiff and guarantees given by 2^nd Plaintiff and Gao.

6.On 1 November 2024, Master D To ordered inter alia the Defendant do recover a sum of HK$97,408,493.15 with interest against the 1^st and 2^nd Plaintiffs and Gao and that the 1^st Plaintiff do deliver vacant possession of the Property to the Defendant.

7.On 25 February 2025, DHCJ Le Pichon granted leave to Yang Linda (“Intervener”), Gao’s wife, to intervene in HCMP 369/2024 and to appeal against (a) Master D To’s order to the extent it required the 1^st Plaintiff to deliver vacant possession of the Property to the Defendant and (b) the subsequent Order for possession and fieri facias granted on 28 December 2024 in respect of the Property. This was the appeal mentioned in the Undertaking.

8.More specifically, the Intervener’s grounds of appeal are (a) she has an equitable interest in the Property and (b) the shareholder resolution of the 1^st Plaintiff to approve the loan was obtained through undue influence of Gao or is otherwise affected by non est factum.

9.Pertinent to present purpose, on 28 March 2025, the 1^st and 2^nd Plaintiffs applied for leave to appeal against Master D To’s order out of time. They wished only to ride on the Intervener’s ground (b), which I have mentioned. On 25 April 2025, DHCJ Le Pichon refused the application. The learned Judge noted:

9.1  The 1^st and 2^nd Plaintiffs accepted that money has been paid over and recovery would be based on something other than debt such as unjust enrichment and there would be interest implications.

9.2  Delay was an issue as there was no explanation why Gao’s knowledge relevant to the purported vitiation of the shareholder’s resolution cannot be attributed to the 1^st and 2^nd Plaintiffs.

9.3  As the 1^st and 2^nd Plaintiffs did not file any affidavit evidence on the basis of their intended appeal, it was difficult if not impossible to assess the merits of their appeal.

10.The 1^st and 2^nd Plaintiffs did not appeal.

11.In the premises, I agree it would be just to exercise my discretion to discharge the Undertaking. The relevant law is well-known: LCFM v LSF [2025] 1 HKC 29 at §§24-27 (Peter Ng J, for the Court of Appeal).

12.As far as the 1^st and 2^nd Plaintiffs are concerned, Master D To’s order (especially the money judgment aspect from which the Judgment Debt arose) is final in the sense that they have exhausted their avenues of appeal. In any case, the Intervener’s pending appeal (which the 1^st and 2^nd Plaintiffs are not parties to) only challenges Master D To’s order requiring delivery of vacant possession of the Property and the consequent enforcement order.

13.It also follows the Originating Summons should be dismissed as well, and I so order.

14.I also order the 1^st and 2^nd Plaintiffs to pay the Defendant’s costs of the Originating Summons and the Summons dated 2 April 2026, including the costs reserved by Order of 21March2025, summarily assessed at HK$200,000.

Ms Wu Hau Mei Jessica of Messrs. S. T. Cheng & Co., for the 1^st and 2^nd Plaintiffs

Mr Sunny Chan instructed by Messrs. K. C. Ho & Fong, for the Defendant