Richcombe Investment Ltd. v. Tin Fung and Another

HCA018283/1999

HCA 18283/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 18283 OF 1999

Coram: Hon. Sakhrani J in Chambers

Date of Hearing: 22 December 2000

Date of Decision: 22 December 2000

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D E C I S I O N

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1. On 14 December 2000, Deputy Judge Muttrie granted an ex parte mareva injunction against the Defendants. Today is the return date of that injunction. The Defendants have in the meantime issued a summons to discharge the ex parte injunction.

2. As is well known, an ex parte mareva injunction is a drastic remedy. It has restraints on the assets of the Defendants and ought not to be applied for unless in exceptional cases. For that reason, the court imposes strict undertakings. And in this case, an undertaking has been given to the Court by the Plaintiff that on or before the 21 December 2000 the Plaintiff would cause a written guarantee in favour of the Defendants in the sum of $5,000,000.00 to be issued from a bank having a place of business in Hong Kong, such guarantee being in respect of any Order the Court may make pursuant to the undertaking in damages.

3. It has also been pointed out to me that by the undertaking 10) given in the ex parte order, it is provided that :

"If for any reason this Order ceases to have effect (including in particular where the Defendant provides security as provided for above or the Plaintiff does not provide a bank guarantee as provided for above), the Plaintiff will forthwith take all reasonable steps to inform, in writing, any person or company to whom he has given notice of this Order, or who he has reasonable grounds for supposing may act upon this Order, that it has ceased to have effect."

4. There has been a failure to provide the written guarantee on or before 21 December 2000. As such, there is a breach of undertaking given to the Court. For that reason alone, I would discharge the ex parte mareva order. If the Plaintiff wishes to seek a fresh order then it must do so at another hearing with the Defendant being given ample time to answer the allegations in the affirmation.

Representation:

Ms Hui, instructed by Messrs Sadiq Solicitors for Plaintiff

Mr Warren Chan, SC and Mr Paul Lam, instructed by Messrs Tang & So for Defendants