Read the full judgment text of CACV 000285/2005 on BabelCite. This Court of Appeal judgment was delivered on 30 May 2006 before Woo VP, Cheung JA, Hartmann J.
Civil appeal – striking out – application by plaintiffs for leave to amend re-amended statement of claim – four causes of action pleaded: (a) dishonest assistance in breach of fiduciary duty and trust, (b) dishonest breach of fiduciary duty, (c) breach of duty, and (d) negligence – Agricultural Bank of China invested in Mai Po land joint venture via wholly-owned subsidiary and shell company – land acquired through Asiagreat Limited as confirmor at HK$515m although Asiagreat had just bought it for HK$150m – Asiagreat beneficially owned by Chio and his girlfriend Elsie Chan – receipts from vendor's solicitors to defendant firm bore ledger name 'Elsie Chan' – whether plea of dishonest assistance sufficiently particularised – court applies Lord Millett in Three Rivers (No 3) [2003] 2 AC 1 and Lord Hoffmann in Barlow Clowes v Eurotrust International Ltd [2006] 1 All ER 333 – primary facts pleaded that first defendant knew of the 19 suspicious matters and ignored them – dishonesty unequivocally and adequately pleaded – striking out judge erred in conjecturing what solicitor would have done and in finding lack of particulars of knowledge – plea of intentional and dishonest breach of fiduciary duty likewise wrongly struck out – whether claims in breach of duty and negligence time-barred under sections 26 and 31 of the Limitation Ordinance (Cap 347) – plaintiffs pleaded they did not discover and could not with reasonable diligence have discovered the fraud until ICAC investigation in December 1998 and D1's involvement until his evidence at the Preliminary Inquiry on 15 August 2000 – knowledge of high cost and rezoning difficulties would not by themselves give rise to suspicion of fraud, let alone that solicitor had concealed it – defendants' applications to adduce fresh evidence from related criminal trial refused – defence of limitation is not manifestly and immediately destructive of the claim per Sir Sebag Shaw in Ronnex Properties v John Laing [1983] 1 QB 398 and Godfrey J in Lam Kee On v Lam Hing [1992] 2 HKC 317 – issue to be tried – appeal allowed with order nisi for costs of appeal and below.
Legal issues: Whether the plea of dishonest assistance in breach of fiduciary duty/trust should be struck out for disclosing no cause of action · Whether the claim of intentional and dishonest breach of fiduciary duty should be struck out for disclosing no cause of action · Whether the claims for breach of duty and negligence are time-barred under the Limitation Ordinance
Outcome: Appeal allowed; the action is restored and to proceed to trial.
Cited by 4 cases