Read the full judgment text of HCA 1535/2008 on BabelCite. This Court of First Instance judgment was delivered on 21 January 2010 before Au J (Thomas Au, Judge of the Court of First Instance).
Mareva injunction – variation – release of enjoined funds to pay legal costs – proprietary claim – Ostrich two-stage test – first defendant employed as assistant payroll manager of Wheelock group – falsification of 14 bank transactions involving HK$8.5 million – 2nd defendant charged with three counts of dealing with property known or believed to represent proceeds of indictable offences – sale of residential property in Tseung Kwan O for about $2 million – whether ordinary Mareva principles or proprietary claim principles apply – whether applicant has demonstrated no other means or assets to pay legal costs – whether court should exercise discretion to release funds – 2nd defendant failed to show sale proceeds came entirely from her own funds unconnected to the misappropriated funds – 2nd defendant failed to provide full and frank evidence of lack of other means given her prior engagement of solicitors and counsel and unexplained withdrawals of about $1.7 million – stage 2 balancing exercise would also have favoured the plaintiffs given strong prima facie proprietary claim – application dismissed with costs to the plaintiffs to be taxed if not agreed.
Legal issues: Applicable test for release of enjoined funds (ordinary Mareva vs proprietary claim) · Whether applicant has no other means or assets to pay criminal defence legal costs (first hurdle) · Stage 2 balancing exercise under the Ostrich test
Outcome: Application by the 2nd Defendant to vary the Mareva injunction and release stakeheld funds dismissed.
Cited by 4 cases · Cites 1 case