Read the full judgment text of CACV 208/2008 on BabelCite. This Court of Appeal judgment was delivered on 3 March 2009 before Rogers VP, Le Pichon JA.
Civil procedure – Order 14 summary judgment – Order 14 r.1(2)(b) RHC – action including claim based on allegation of fraud – exclusion from summary judgment jurisdiction – resulting trust, constructive trust, money had and received – whether deliberate dishonesty constitutes 'fraud' within the rule – meaning of Derry v Peek fraud – Hong Kong position departing from English approach in Newton Chemical v Arsenis – Kays Impex, Peninsula Fur Trading, Skink followed – plaintiff alleged massive accounting fraud spanning 1994 onwards – hidden investments in South Horizons properties, Shouson Hill properties, and PacMos shares – funds channelled through maze of Hong Kong-managed companies – false financial statements – destruction of books and records – 12-day Order 14 hearing with 5-day plaintiff opening – 10,000 pages of supporting documents – 58 box files on appeal – 80-page judgment below – three actions (HCA 2763/2004, HCA 2746/2004, HCA 2203/2004) – personal costs order against three non-party directors – held: once a claim based on allegation of fraud appears on writ, Order 14 inapplicable to entire action – plaintiff cannot elect to proceed on alternative non-fraud causes of action – court has no jurisdiction – applications wholly unsuitable for summary judgment – appeals allowed – orders set aside – remitted to commercial list judge for strong case management – leave to appeal to CFA refused 5 June 2009.
Legal issues: Whether Order 14 r.1(2)(b) excludes the action from summary judgment because it includes claims based on allegations of fraud · Whether summary judgment was suitable given the complexity and length of the hearing
Outcome: Appeals allowed; orders for summary judgment set aside; matter remitted to the judge in charge of the commercial list for strong case management. Leave to appeal by the plaintiff to the Court of Final Appeal was refused on 5 June 2009.
Cites 5 cases