Grand Field Group Holdings Ltd v. Tsang Wai Lun Wayland and Others

HCA 2471/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2471 OF 2008

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BETWEEN

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Before: Hon Kwan J in Chambers

Date of Hearing: 2 December 2008

Date of Decision: 2 December 2008

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D E C I S I O N

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1.I am going to discharge the ex parte injunction obtained before the Duty Judge on 28 November 2008.  As I have indicated to counsel in the course of submission, there is a long history of dispute between two rival factions of shareholders in this company.  There is a struggle going on for control of the company, and any application for any kind of interim injunction must be scrutinized by the court with circumspection.  An ex parte application is hardly justifiable in the circumstances.

2.Besides, any urgency for this application is entirely of the plaintiff’s own making.  No good reason was shown why the management had only sought witness depositions from the Magistrate’s Court in November 2008, when the management had known all along the conspiracy and criminal charges against the 1^st and 2^nd defendants, and allegations and counter allegations concerning the conspiracy and criminal charges had been made in voluminous evidence filed on both sides in HCMP No. 1059 of 2008.

3.Furthermore, the plaintiff had received notice of requisition for a special general meeting as early as 25 September 2008.  The notice for such meeting was issued on 14 November 2008 for the meeting to be held today.

4.I agree with Mr Mok SC there is no justification for applying to court ex parte only on 28 November 2008 without giving any notice whatsoever to the defendants.  I am also concerned about the delay of the plaintiff’s solicitors in serving the solicitors for the defendants, with whom they have been corresponding, with the papers in the application until noon on Monday when the injunction was obtained late Friday afternoon.  But that is not the reason for the discharge.

5.I have also taken into account material matters that should have been brought to the Duty Judge’s attention, that these shares could not be disposed of in secrecy because of the disclosure requirement in the Listing Rules, and the shareholdings of these two defendants had exceeded 5% since the acquisition of the shares by the 4^th and 5^th defendants in 2002.  It was only in August and September 2008 that the shareholdings were reduced to below 5% and thereby exempted from the disclosure requirements.  Also there is the fact that the 4^th defendant had been allowed to vote in previous general meetings at the latest in June 2008 without any objection.

6.It seems to me it would only be right in these circumstances to discharge the ex parte injunction.  I therefore grant a discharge of the injunction made on 28 November 2008.

Mr Joseph Fok, SC and Mr Mike Lui, instructed by Messrs Tony Kan & Co., for the Plaintiff

Mr Johnny Mok, SC and Ms Catrina Lam, instructed by Messrs Huen Wong & Co., for the 4^th and 5^th Defendants