Banca Popolare Di Vicenza Soc. Coop. and Another v. Alutech (Far East) Co Ltd and Others

HCA 1973/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1973 OF 2007

____________

BETWEEN

____________

Before:  Hon Saunders J in Court

Date of Hearing:  11 September 2008

Date of Judgment: 11 September 2008

_______________

J U D G M E N T

_______________

1.This is an application by the Plaintiff for an order of committal of the 5^th Defendant, Mr Grant, on the grounds that he has been breach of an injunction prohibiting of disposal of assets worldwide.

2.On 20 September 2007, an injunction was issued prohibiting the disposal of the assets held by the 3^rd Defendant and Mr Grant.  That was a worldwide Mareva Injunction. 

3.There is no dispute that the injunction was properly served on Mr Grant and that at that time he has solicitor acting for him.  He accepts before me now that the injunction was explained to him by his solicitor.  The injunction is quite clear.  It prohibits the disposal of any assets that do not exceed HK$10,800,000.00, whether those assets are outside Hong Kong or inside Hong Kong.

4.The injunction required Mr Grant, in the usual way to file an affidavit setting out details as to his assets.  On the day prior to swearing that affidavit, Mr Grant signed a Power of Attorney in favour of his wife which enabled her to subsequently sell a house property owned by both Mr Grant and his wife in Australia.

5.Mr Grant asserted me today, he did not understand the true meaning of the injunction.  He had solicitors, the document is in English.  He read it himself, and it was explained to him by his solicitors.  It is in plain terms.  I simply do not believe his assertion that he did not understand the terms of the injunction.

6.I am satisfied that he knew, and must have known, when he signed the Power of Attorney that it would be used to sell the property in Australia, and that that was in clear breach of the interim injunction.

7.The Plaintiffs now seek orders committing Mr Grant, and orders requiring him to swear an affidavit which will show where the proceeds of sale had gone. 

8.Under normal circumstances, a person is committed to prison when in contempt of court until such time as they are able to remedy the contempt that it has been occasioned, and there is resulted in all is being made against them.  Nothing can be done now to unwind what has taken place, although it may be possible for the Plaintiffs to pursue the proceeds of sale if they can establish somehow that Mr Snowdon, the purchaser of the land was in connivance with Mr Grant or his wife, and was aware what was happening.  That is a matter which I will have to leave to the Plaintiff’s solicitors.

9.But I cannot let the matter go, just because the contempt cannot be remedied.  Mr Grant has to understand that what he did was a serious matter.  The signing of the power of attorney was a deliberate breach of the court order designed to frustrate the terms of that order. 

10.I am satisfied that in those circumstances, Mr Grant should stand committed to prison for a period of six months by way of punishment for the breach of the order. 

11.Mr Grant says that he will be able to file an affidavit in terms of the request by the Plaintiffs and the draft order that has been shown to him.  The draft order asks for 14 days; that is an unrealistic time bearing in mind that the information is in Australia will have to be obtained from Australia.

12.I am going to give Mr Grant 42 days to file the affidavit.  That will give him sufficient time to send a copy of the order to Australia, so the people down there know just what information he will require in order to file a proper affidavit.

13.There is no reason why the costs of the motion in the committal should not be paid by Mr Grant, and in the usual way that must be on an indemnity basis.

Ms Winnie Tsui, instructed by Messrs Clyde & Co., for 1^st and 2^nd Plaintiffs

5^th Defendant – Paul James Grant (in person), present