Read the full judgment text of CACV 000187/2004 on BabelCite. This Court of Appeal judgment was delivered on 8 February 2005 before Hon Yeung JA and Hon A Cheung J.
Civil procedure – restraint order – Organised and Serious Crimes Ordinance (Cap. 455) s.15 – receivership – third party bank's rights of set-off and combination of accounts – whether court can order third party to apply for variation of restraint order – whether Court of Appeal should determine substantive question of law on third party set-off – whether to make declaration regarding bank's right to exercise set-off – case management and discretion – appeal from Court of First Instance – on appeal from HCMP 5714/2001 – bank accounts of Yau Hip Trading Company Limited (22nd Respondent) – restraint order made by Gall J on 27 October 2001 – amended restraint order on 26 November 2001 – receivers appointed on 20 December 2001 – sole receiver Mr John Lees – bank purported to exercise rights of set-off and combination of account balances – receivers' amended summons sought account and payment – preliminary issue ruled in favour of receiver by judge – amended order required bank to obtain variation before exercising set-off – paragraph 1 of amended order held to be without jurisdiction as court has no power to order third party to apply for variation – paragraphs 2 and 3 of amended order could not stand once paragraph 1 set aside – declaration refused as fact-sensitive – substantive question of law on set-off not determined as potentially academic – appeal allowed in part – liberty to restore granted – costs reserved – costs order nisi: one-third by receiver, two-thirds by parties themselves
Legal issues: Validity of paragraph 1 of amended order mandating variation application · Effect of setting aside paragraph 1 on paragraphs 2 and 3 of amended order · Whether to grant declaration that bank may exercise set-off without variation · Whether to determine substantive question of law on third party set-off
Outcome: Appeal allowed in part: the amended order was set aside and replaced with an order giving the parties liberty to restore the hearing of the outstanding summonses, and general liberty to the receiver to apply for further or other directions. The declaration sought by the Bank was not granted
Cited by 4 cases · Cites 1 case