Fubon Bank (Hong Kong) Ltd v. First Prime Group Ltd and Others

HCMP223/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 223 OF 2009

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BETWEEN

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Before: Deputy High Court Judge Bharwaney SC in Chambers (Open to Public)

Date of Hearing: 17 April 2009

Date of Decision: 17 April 2009

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D E C I S I O N

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1.This matter came before Saunders J on an urgent basis and on 6 April 2009, he made an order that the Plaintiff, the Fubon Bank (Hong Kong) Limited, be restrained from releasing moneys from the Plaintiff’s account number 828-5-700149-9, pursuant to the garnishee order made absolute in HCA9/2009, until further order of the court.  He further ordered that costs be reserved.

2.He granted that injunction order upon the undertaking of Mr Thakur, who is the 9th Defendant in HCMP223/2009, that Mr Thakur will file and serve an inter partes summons on 7 April 2009, returnable this morning before the summons judge, to continue the interim injunction until after the outcome of the related appeals.  He also required the usual undertaking to abide by any order the court may make if the court later finds that the order has caused loss to any relevant parties and so on.

3.Pursuant to that undertaking, Messrs Hon & Co., the solicitors for the 9th Defendant, Mr Thakur, very properly issued the summons which is before me, for an order that the said injunction continue until further order of the court.  This summons was issued on 8 April 2009. 

4.In fact, on 7 April 2009, the appeal from the garnishee orders absolute was heard by Saunders J and he gave judgment on 14 April 2009.  As part of the orders made by him at the conclusion of the hearing and upon his determination of the appeal, he ordered that the interim injunction made by him, restraining Fubon Bank from disposing of the funds until the interpleader and garnishee proceedings have been disposed of, will continue until further order of the court.  It might have skipped his attention that there was a return date fixed on the injunction he had granted on 6 April and it seems likely to me that had that matter been brought to his notice, he would have directed that today’s hearing be vacated.

5.In any event, Messrs Hon & Co., upon seeing that order and realising that the effect of the order was that the injunction was to continue, therefore negating the purpose of today’s return date, very sensibly wrote to the solicitors for the 3rd to the 8th Defendants, Messrs Oldham, Li & Nie, to vacate today’s hearing. 

6.Unfortunately, that did not materialise because, as Mr Ip for the 3rd to 8th Defendants informs me, he wished to use this opportunity to try to obtain further directions from me with a view to an early and efficient resolution of this matter so that the proceedings could come very quickly to an end.  The matters he wanted me to order - and this is from a draft order that I received this morning - included directions that the Plaintiff do have leave to deduct a certain sum of money from the 1st Defendant’s account bearing the same number as identified above, and to pay certain moneys from that account to the 4th, 5th and 6th Defendants, and to pay certain moneys from that account to the 9th Defendant, with the balance to be made available to other general creditors.

7.This obviously stems from the very sensible suggestion made by Saunders J in his judgment of 14 April 2009, in paragraph 57 of that judgment, that it seemed sensible that each of these three groups of claimants, the three Croatian Defendants, Mr Al Husseini and Mr Thakur, should be entitled to trace their funds, retrieve them, and that any balance in the account of Fubon Bank, after the bank’s costs were deducted, be available to any other creditors.

8.However, Saunders J, in dealing with the appeal, was not in a position, as I understand it, to actually make those orders.  The orders that he actually made, as appears in paragraph 61 of his judgment, was that the appeal against the orders of the Registrar making the garnishee orders absolute and the consequent costs orders, should be allowed.  He then set aside the garnishee orders absolute and then restored the garnishee orders nisi.  Orders of costs made by the Registrar below were also set aside, and of course he made the order continuing the injunction.  He ended his judgment by suggesting to the parties that the sensible and just way of resolving the matter appeared to him to be the manner suggested in paragraph 57 of his judgment, to which I have already referred. 

9.I understand that, in fact, the order that was made by Saunders J has still not been perfected so, of course, it is possible for Mr Ip, and indeed for Miss Fong, who appeared for the 9th Defendant, and her solicitors, to make an application before Saunders J, under the slip rule, if they are of the view that there is anything further that he could adjudicate upon or give directions on, or if they are of the view that there had been certain mistakes in his order in relation to the description of the parties, which is what I think has been suggested by Miss Fong to me in her written submissions that I received yesterday.1 

10.However, I am possessed of this matter only under the summons of 8 April, being the return date on the original injunction order made by Saunders J.  As the purpose of this summons has lapsed by reason of the order made by Saunders J on 7 April, the only proper thing I can do this morning is to make no order on the summons. 

11.I am not seized of any of the other matters that Mr Ip wants me to deal with.  At the very least, he could have issued a summons before me on those matters and then I might have considered those matters or, possibly, adjourned that summons to be heard by Saunders J.  As the matter now stands, there is not even a summons before me. 

12.So for these reasons, I conclude that the only order I can make on the summons that is before me is that there be no order on that summons.

13.The reason I made inquiries of the parties as to what, if any, steps were taken to vacate today’s hearing, was to try to ascertain why the parties have come to court before me.  It appears to me that Messrs Hon & Co., very sensibly, wrote to the other side to vacate today’s hearing and, absent agreement, they have no choice but to be here.  For that reason, I am minded to order the costs of today to be paid to the 9th Defendant by the 3rd to the 8th Defendants and I so order.

Mr Alfred Ip, of Messrs Oldham Li & Nie, for the 3rd to 8th Defendants

Miss Candy Fong, instructed by Messrs Hon & Co., for the 9th Defendant

Messrs Wilkinson & Grist, for the Plaintiff, absent

1  Since delivering this judgment, it has come to my notice that the Clerk to Saunders J issued a corrigenda on 22 April 2009.