Libertarian Investments Ltd v. Thomas Alexej Hall

HCMP 1435/2007

in the high court of the

hong kong special administrative region

court of appeal

MISCELLANEOUS PROCEEDINGS no. 1435 of 2007

(on AN INTENDED appeal from HCA NO. 2533 of 2006)

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BETWEEN

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Before : Hon Rogers VP in Chambers

Date of Hearing : 3 September 2007

Date of Decision : 3 September 2007

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D E C I S I O N

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1.This is an application to extend time for appealing against an order made by Gill DHCJ on 24 November 2006.  The judge, on that occasion, made a disclosure order that followed an ex parte injunction of the Mareva type which had been granted by Sakhrani J on 16 November, but Sakhrani J had not ordered disclosure.  The inter partes summons was heard by Fung J and he gave judgment on 4 June but in the meantime there had been an extension of time of the disclosure order granted by Reyes J in February.

2.No attempt was made to appeal that disclosure order and I have had extensive argument this morning as to whether or not the disclosure order should have been made in the sum which it was.  In effect, the defendant’s argument is that the amount that was the subject of the Mareva injunction order was reduced from some $13 million to some $8 million.  It was said that the disclosure order should never had been made in the original sum of $13 million.  It seems to me the answer to that, if I have got it right, is that the defendant has explained $5 million of that $13 million and, therefore, it is only $8 million that is unexplained, according to the plaintiff.  According to the defendant, he has explained it.

3.At the moment, I regret that I do not see any reason for saying that Gill DHCJ’s disclosure order was in the wrong amount.  I had had doubts about how that order was made but, having looked at the matter more carefully, it seems to me that the order was properly framed and I regret that I do not see that on this occasion, I should extend time for appealing in a matter which has been now outstanding for a very long time and has exercised the court on a couple of occasions as to the time for this disclosure.  I see no reason why this disclosure should not have been made.  The amount that was transferred to the defendant, admittedly, on the defendant’s case by another company other than the plaintiff, but, be that as it may, was vastly in excess of that and there is no question in my mind that the whole sum has to be accounted for at some stage or another.

4.It is clear that the reason for this belated application for leave to appeal was prompted by the commencement of contempt proceedings and an application for judgment for breach of the order.  Whether or not those applications are successful; whether or not the defendant can succeed in showing that he has made full disclosure; and whether or not judgment should be granted on its failure to make the order are really not matters for me to decide today.  I simply have to decide whether leave to appeal should given and I do not think that this is an appropriate case for me to exercise that discretion.

(Submission re costs)

5.Costs allowed.

Mr Barrie Barlow SC, instructed by Messrs Haldanes, for the Plaintiff/Respondent

Mr Colin Wright, instructed by Messrs Kennedys, for the Defendant/Applicant