Read the full judgment text of HCA 542/2007 on BabelCite. This Court of First Instance judgment was delivered on 6 January 2011 before Deputy High Court Judge Au-Yeung.
Civil procedure – striking out – abuse of process – settlement deed – Debt Restructuring Agreement – Duomatic principle – service out of jurisdiction – material non-disclosure – intervention – indemnity costs – expressway joint venture in Tianjin – RMB 250 million remittances from Jinfu to GZCK pursuant to Debt Restructuring Agreement dated 17.3.2001 – plaintiffs alleged wrongful diversion of loan and claimed money had and received, constructive trust, damages for conspiracy, and breach of fiduciary duty by director Ms. Shi – whether the present action was barred by the Debt Restructuring Agreement under the Duomatic principle in In re Duomatic Ltd. – held yes, as all shareholders with voting rights had assented to the agreement and Mr. Ho himself requested instructions on the recipient – whether the action was barred by the full and final settlement under the Settlement Deed dated 23.9.2009 – held yes, the Settlement Deed was wide in ambit covering all disputes between rival camps including associates of Kwong Ian (which expressly included GZCK under Clause 18.2(ii)(b)) and directors (which included Ms. Shi), and Clause 17.1(a) warranty that no proceedings were intended was breached – whether the action was frivolous, vexatious, and an abuse of process – held yes, applying Henderson v. Henderson and Johnson v. Gore Wood & Co., as the rule applies to compromises as well as judgments, and the action constituted a collateral attack on the settlement achieved by deliberate concealment – whether service of the writ out of jurisdiction should be set aside – held yes, as claims did not fall within Order 11, rule 1(1)(c), (d)(i), (f), or (p) (breach of fiduciary duty is not a tort per ICS Technology Ltd. v. Guerin), relevant acts took place in Guangzhou, and there was material non-disclosure of the Debt Restructuring Agreement, Settlement Deed, and related compromised proceedings – whether Kwong Ian should be granted leave to intervene – held yes, following Snelling v. John Snelling Ltd., as Kwong Ian had sufficient interest to enforce the settlement – costs ordered on indemnity basis on a nisi order given plaintiffs' deplorable conduct, blatant disregard of duty of full and frank disclosure, and abuse of court process to relitigate settled disputes – leave granted for intervener to be joined; service out of jurisdiction set aside; statement of claim struck out; action dismissed; costs to defendants and intervener on indemnity basis.
Legal issues: Whether the Debt Restructuring Agreement and Settlement Deed bar the plaintiffs' claims · Whether the action should be struck out as frivolous, vexatious, or abuse of process · Whether leave to serve the writ out of jurisdiction should be set aside · Whether Kwong Ian should be granted leave to intervene
Outcome: Leave granted for Kwong Ian to intervene; service of writ out of jurisdiction set aside; statement of claim struck out; action dismissed.
Cited by 4 cases · Cites 3 cases