Yuen Oi Yee Lisa v. Bettabob Investments Co Ltd and Others

HCA789/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 789 OF 2007

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BETWEEN

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Coram:  Hon. Lam J in Chambers

Date of Hearing:   26 June 2007

Date of Judgment: 26 June 2007

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J U D G M E N T

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1.This an appeal against the decision of Registrar Chan in relation to a summons issued on 25 May this year by the Plaintiff.  In that summons, the Plaintiff asked for an order to freeze all assets of the 1st Defendant, Bettabob Investments Company Limited, and/or “to block its mutual deed in order to stop and cease a sale of two properties before clearing her debt”.

2.That application was dismissed by the Registrar, and the Plaintiff now wishes to appeal against that decision.

3.The so-called debt due to the Plaintiff is in respect of an invoice of $50,000.  The Plaintiff claims that this is the amount owed to her by the company, the 1st Defendant.  But there is no evidence in the very numerous affirmations filed by the Plaintiff to explain how the invoice can be said to be for services provided at the request of the company.

4.What happened was that there was a dispute between the shareholders of the Company who are two brothers.  The Plaintiff voluntarily offered assistance to one of the brothers, Mr Lee Shun-chung, and in the course of handling the dispute between the two brothers, there came a time when there was a suggestion that the Plaintiff can check the accounts of the company on behalf of Mr Lee.

5.The dispute of the brothers revolved around certain rental receipts and without going into the details, what was expected was that the checking of the accounts would assist the brothers in terms of solving their problems between themselves.

6.It is quite obvious from what has been set out in the evidence that the Plaintiff was primarily assisting Mr Lee Shun-chung in examining the accounts.  But Miss Yuen suggests that the other brother, Mr Li Kam-Chuen, had authorised her to inspect the accounts through his solicitors Mr Alexander Lee.

7.As mentioned in the course of argument, it does not follow from the authorisation to inspect accounts that the company engaged the service of the Plaintiff in terms of inspection of the accounts.

8.But I do not have to come to a conclusion in terms of the merits of the Plaintiff’s claim in this regard at this stage because the relief the Plaintiff asks for in the summons is in the nature akin to a Mareva Injunction, or a specie of Mareva Injunction, because what the Plaintiff seeks is to prevent the company from selling its assets.

9.It is well established that before a Mareva Injunction or an injunction of a similar nature can be granted, the Plaintiff has to show the following:

(1)  that she has a good arguable case on the substantive claim over which the court has jurisdiction;

(2)  that the Defendant has assets within the jurisdiction;

(3) that the balance of convenience is in favour of the grant of an injunction;

(4)  there is a real risk of dissipation of assets or removal of assets from the jurisdiction which would render the Plaintiff’s judgment of no effect.  (See paragraph 29/1/56 of the Hong Kong Civil Procedure 2007)

10.In the context of the present application, I am not satisfied that the Plaintiff has a good arguable case on her substantive claim.  Whether she has a claim which is not liable to be struck out is a matter that has yet to be considered, but having looked at the evidence that she has filed and the obvious difficulty she has in her mind in deciding whether she should sue the company or the two brothers - even up to today she is indicating to this court that she would like to sue the brothers themselves as opposed to the company - is a good indication that the Plaintiff does not have a good arguable case on the claim itself.  Further, there is no evidence whatsoever about risk of dissipation of assets.  Even if the company were to sell the properties, the company will get the sale proceeds and there is no suggestion that the sale proceeds will be dissipated. 

11.At the highest, the Plaintiff’s claim is for $50,000.  It is a relatively small amount as compared with the assets of the company.  I see no basis for inferring that there is any risk of dissipation in terms of assets being dissipated with a view to frustrate the Plaintiff’s claim. 

12.Therefore, there is no basis for this court to grant any injunctive relief at this stage and the Registrar was correct in dismissing the Plaintiff’s application.

13.Therefore, the appeal has to be dismissed.

(Submissions on costs)

14.The Plaintiff shall pay the 1st Defendant’s costs and such costs are fixed pursuant to Order 62, rule 9(4)(b) at $7,000.

Representation:

Plaintiff, in person, present

Mr Joseph Tang Ming-fai, of Joseph, Tang & Co., for the 1st Defendant