Akai Holdings Ltd (in Compulsory Liquidation) and Others v. Ho Wing on, Christopher and Others

hcmp 1632/2009

in the high court of the

hong kong special administrative region

court of appeal

miscellaneous proceedings no. 1632 of 2009

(on AN INTENDED appeal from HCCL NOs. 37 of 2005

AND 40 OF 2005 )

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BETWEEN

Before: Hon Rogers VP and Le Pichon JA

Date of Decision: 27 August 2009

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D E C I S I O N

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Hon Rogers VP:

1.This is an urgent application for leave to appeal orders made by Stone J yesterday, 26 August 2009.  In view of the urgency of the application of these reasons will be brief.

2.The orders made by the judge were as follows:

(1)  The judge dismissed the intervener’s application to adjourn the plaintiff’s application to appoint a receiver over the assets of the Family Trust pending final determination of an application, which has yet to be taken out, to vary two orders made by Stone J dated 17 February 2009 and 1 June 2009 respectively.  The application is to be directed to securing an order that those two orders should cease to have any effect on the Family Trust assets.  The judge has proceeded to hear the application for the appointment of a receiver and the intervener avers that it is in no position to “defend” the same.

(2)  The judge also ordered that there should be disclosure to himself and to the plaintiffs of all materials placed before Reyes J in the application made on Monday of this week, 24 August 2009, when a Beddoe order was granted.  The judge excepted from the disclosure the written opinion provided by a Hong Kong Senior Counsel and all references thereto in the supporting affidavit were to be excised.

3.In my view any appeal at this stage has no prospects of success.  The judge is in the process of hearing the plaintiffs’ application.  The Intervener was aware of that application at least since 4 August 2009.  In so far as the judge refused to adjourn the plaintiff’s application, the order made by the judge was primarily a case management decision.  Furthermore, there is no apparent reason why those representing the first defendant cannot advance any argument which can be put forward by the intervener.

4.In so far as the judge may make any order on the plaintiffs’ application, it has not been shown that any irreparable damage may result from that which cannot be rectified on any subsequent appeal.

5.As regards the disclosure of the material in the Beddoe application, the judge has already excluded counsel’s opinion and any part of the supporting affidavit that refers to that.  Given the particular circumstances of the case, the judge considered that it was right in the circumstances to order that and, again, appropriate orders can be made should it ultimately be considered that any harm has been done which should not have been occasioned.

6.In the circumstances, I would refuse this application for leave to appeal and make an order under Order 59 rule 2A(8) that since this application is totally without merit, no party may request the determination to be reconsidered as an oral hearing inter partes.  I would make an order nisi that the costs of this application be to the plaintiffs in any event.

Hon Le Pichon JA:

7.I agree.