Lucky Money Ltd and Others v. Guangzhou Chung Kin Engineering Co and Others
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
|
HCA 542/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 542 OF 2007 _________________________ BETWEEN
_________________________ Before : Deputy High Court Judge Au-Yeung in Chambers Date of Hearing : 18 November 2010 Date of Handing Down Decision : 6 January 2011 ------------------------ DECISION ------------------------ 1.There are 2 summonses before me:
CLAIM IN THE PRESENT ACTION 2.The action concerns loans made by Tianjin Jinfu Expressway Co. Ltd. (“Jinfu”) to the plaintiffs (‘the Lucky Companies”) in the sum of RMB 250,000,000. The Lucky Companies claim that the loan was wrongfully diverted by D3 (“Ms Shi”) to the account of D1 (“GZCK”) on dates unknown on the instructions of GZCK and/or Kwong Ian and one Mr. Chen Ru Gui. The Lucky Companies claim that the defendants are liable to account to the Lucky Companies for money had and received, that the defendants held the loan as the Lucky Companies’ constructive trustees and damages for conspiracy to defraud or to injure against both defendants. They also seek damages for Ms Shi’s breach of fiduciary and/or contractual duties. BACKGROUND 3.The background facts have been helpfully summarized in the skeleton submission of Mr. Mak, counsel for the defendants and Kwong Ian and I set out the relevant parts below. 4.For the purpose of building and operating an expressway in Tianjin (“the Project”), 3 Sino-foreign joint venture companies (“the Project Companies”) were set up, each in charge of one section of the expressway. One of them was Jinfu. Each project company had 2 joint venturers, a “Chinese side” venturer holding a 40% stake in the project and a “foreign side” holding a 60% stake. On the foreign side, the original venturers were the Lucky Companies. 5.The foreign side of the project was originally owned by several investors. The most prominent figure was Mr. Ho Kai Cheong (“Mr. Ho”) who made the affirmations on behalf of the Lucky Companies in this action. His and/or his associates’ stake in the foreign side was held through a company called Golden Tree Investments Ltd. (“Golden Tree”). 6.Initially, Kwong Ian was not involved in the Project. In March 1998, at the invitation of the original investors, Kwong Ian agreed to become an investor on the foreign side because of its ability to raise bank loans through its associated company, GZCK. 7.To facilitate Kwong Ian’s participation, a holding company called Inter Ease International (Highways) Ltd. (“Inter Ease”) was set up by Kwong Ian and the original investors on the foreign side. Inter Ease was effectively the holding company of the 3 Lucky Companies because, as the only 2 shareholders, both Kwong Ian and Mr. Ho held their shares in the Lucky Companies on trust for Inter Ease. 8.With regard to the shareholdings of Inter Ease, Kwong Ian held 9,999 shares and Mr. Ho held one. As a result of declarations of trust, there were 2 camps: Kwong Ian held 49%, and the remaining 51% was held by Mr. Ho on his own and on behalf of other original investors controlled by him, i.e. Golden Tree and one South Beach Group Ltd. (“South Beach”). 9.Both Kwong Ian and Golden Tree had nominee directors on the boards of Inter Ease and each of the Lucky Companies. One of Kwong Ian’s nominee directors was Ms. Shi. One of Golden Tree’s directors was Mr. Ho. 10.Kwong Ian arranged for GZCK to secure bank loans totalling RMB 258 million for the project. GZCK lent the same amount to Kwong Ian who, in turn, lent the same amount to Inter Ease. The loan was forwarded to Jinfu and used for the project. 11.In 2000, using the project’s future toll fee income as security, Jinfu secured a bank loan of RMB 500 million. In March 2001, Jinfu resolved that out of that loan, RMB 250 million would be made available for use of the foreign side (i.e. the Lucky Companies). (In HCA 447 of 2006 and on appeal in CACV 266 of 2007, it was held that this latter sum was in the nature of a loan from Jinfu to the Lucky Companies.) 12.At about that time, various parties on the foreign side (i.e. Inter Ease, Kwong Ian, Mr Ho, Golden Tree and South Beach) entered into the Debt Restructuring Agreement dated 17.3.2001. Kwong Ian and Mr. Ho also entered into the 1st and 2nd Supplemental Agreements on the same date. These few Agreements were agreed to by Kwong Ian and Mr. Ho who were then all the registered members of the Lucky Companies. 13.The material clauses of the Debt Restructuring Agreement provided as follows:
14.The 3rd recital to the 2nd Supplemental Agreement shows receipt of RMB 2.58 million by Kwong Ian:
15.By a fax dated 14.3.2001 copied to Ms. Shi, Mr. Ho himself asked Kwong Ian for instructions with respect to the identity of the recipient of the RMB 250 million. 16.On 19.3.2001, Ms Shi (then a director of Jinfu and Kwong Ian) caused Jinfu to make 5 remittances totalling RMB 250 million from its account in Guangzhou to GZCK’s account in Guangzhou for the purpose of repaying the bank loans of RMB 258 million and the interest thereon. 17.In April 2001, the shareholding and management structures of Inter Ease and the Lucky Companies were reorganized so that Mr. Ho’s camp had assumed effective control over these companies. 18.Almost immediately thereafter, Mr. Ho’s camp began to take steps to eliminate Kwong Ian’s further participation and interests in the foreign side of the Project. His camp complained that Kwong Ian was, through its nominee directors (e.g. Ms. Shi) guilty of irregularities in the handling of fund remittances from the foreign side e.g. “unauthorized withdrawals” and “diversions of fund” from Inter Ease. Mr. Ho’s camp proceeded to remove all of Kwong Ian’s nominee directors on the board of the Project Companies in about 2004 and later the nominated directors on the board of the Lucky Companies in about August 2006. 19.In 2004, Mr. Ho’s camp took steps which caused the foreign side’s (i.e. Lucky Companies’) interests in the Project to become assigned (“the 2004 Assignment”) and vested in a company called Glorious Sun (Highway Development) Ltd (“Glorious Sun”), which was owned and controlled by Mr. Ho and his camp. The effect was that Glorious Sun had, on the official records, replaced the Lucky Companies as the foreign side. 20.There then followed a series of litigation and arbitration, among others:
The allegations which made up the claims in items (ii) to (vi) were all directly related to the RMB 250 million. 21.Whilst all those legal proceedings and arbitrations were ongoing, Kwong Ian and Mr. Ho’s camp explored the possibility of a sale of the foreign side’s interest in the Project with a view to achieving a clean break from the Project and from one another. Eventually one Choice Tone Ltd. (“Choice Tone”) purchased the interests of the foreign side. 22.In September 2009, a deal was struck among Choice Tone, Kwong Ian and Mr. Ho’s camp. It was reflected in various agreements including the Settlement Deed dated 23.9.2009, the Foreign Interests Assignment dated 25.9.2009 and the Indebtedness Assignment dated 19 November 2009. 23.For the purpose of the sale of the foreign side’s interests, the 2004 Assignment was ratified by special resolutions of the Lucky Companies in general meeting. The foreign sides’ interests were then sold by Glorious Sun (not the Lucky Companies) to Choice Tone, the consideration of which was:
24.For the purposes of arriving at a full and final settlement of all disputes between Kwong Ian’s camp and Mr. Ho’s camp, the parties had agreed to the terms as provided for in clauses 17 and 18 of the Settlement Deed (detailed in paragraph 35 below). To facilitate a clean break between the 2 camps, Kwong Ian’s shares in each of the Lucky Companies were transferred to a nominee of Glorious Sun and Kwong Ian’s shares in Inter Ease were transferred to Mr. Ho, all at nominal consideration. THE EFFECT OF THE ABOVE DEALINGS ON THE PRESENT ACTION 25.The issue is whether or not having regard to the above dealings, any claim which the plaintiffs might have against the defendants and/or the RMB 250 million could not be maintained having regard to:
The Debt Restructuring Agreement 26.Five remittances by Ms Shi to GZCK (which were the subject of the alleged diversion of funds in the present action) were made pursuant to the Debt Restructuring Agreement. Mr. Ho was clearly aware of them and himself asked Kwong Ian by fax for instructions as to the identity of the recipients. If the RMB 250 million was intended for any of the Lucky Companies, Mr. Ho would have asked for the RMB 250 million to be paid to the Lucky Companies instead. 27.The present action is against the clear wording of the Debt Restructuring Agreement and Mr. Ho’s fax. By virtue of the facts set out in paragraphs 7 and 8 above, all the parties who had an interest (direct or indirect) in the Lucky Companies were parties to the Debt Restructuring Agreement. 28.According to In re Duomatic Ltd., [1967] 2 Ch 365, where it can be shown that all shareholders who have a right to attend and vote at a general meeting of the company assent to some matter which a general meeting of the company could carry into effect, that assent is as binding as a resolution in general meeting would be. 29.Therefore, the fact that no resolution had been passed by the boards of the Lucky Companies authorizing Ms. Shi to effect the remittances was irrelevant. The Lucky Companies should not be permitted to pursue a bogus claim of diversion of funds against the defendants when they consented to or had knowledge of the “diversion”. Full and Final Settlement under the Settlement Deed 30.The Settlement Deed was entered into on 23.9.2009 whereas the present action was instituted in 2007. One of the affirmations of Ms. Ho filed on behalf of the Lucky Companies in seeking to extend the validity of the writ in the present action did refer to the settlement amongst the Lucky Companies, Kwong Ian, Jinfu and other parties and the fact that it included several other court proceedings in Hong Kong and the Mainland. Mr. Ho, however, affirmed that the present action did not come under the Settlement Deed. On counsel’s advice, so Mr. Ho affirmed, the action against Kwong Ian was discontinued. This action against GZCK and Ms Shi was, however, pursued. 31.It is true that the defendants were not parties to the Settlement Deed. In fact, it was upon legal advice that GZCK made a considered decision not to be a party to the Settlement Deed. That, however, does not bar the Court from construing the Settlement Deed to ascertain the true ambit of the settlement. 32.The following principles of construction are relevant and are not disputed. In Jumbo King Ltd. v. Faithful Properties Ltd. [1999] 2 HKCFAR 279, Hoffmann NPJ says,
33.Commercial contracts should be construed in a commercially sensible manner. In Mannai Investment v. Eagle Star Life Assurance [1997] AC 749, 771, Lord Steyn has this to say,
34.In L Schuler AG v. Wickman Machine Tool Sales Ltd. [1974] AC 235 at 251, Lord Reid says,
35.With the legal principles in mind, I now turn to the relevant clauses in the Settlement Deed.
36.The Settlement Deed was thus wide in ambit:
37.The present action was never disclosed to Kwong Ian until after execution of the Settlement Deed. Therefore, there was no express reservation in the Settlement Deed permitting the Lucky Companies to pursue it. Mr. Wu for the Lucky Companies argues that the Lucky Companies are at liberty to pursue this action. His arguments can be broadly classified as:
38.With regard to argument (i), I can hardly see what difference the intended voluntary liquidation could make. The term “擬準備進行” was clear in its meaning. It covered actions soon to be commenced or temporarily held in abeyance. The present action fell within its meaning as it was held in abeyance pending resolution to wind up or settlement. The Lucky Companies could not even claim that they had forgotten about this action because they promptly applied for extension of the validity of the writ each year and both the intended liquidation and the settlement were relied on in those applications. The irresistible inference is that the Lucky Companies had deliberately concealed the present action during the negotiation for settlement. Argument (i) fails. 39.With regard to argument (ii), Mr. Wu argues that what was encompassed in the Settlement Deed was stated in the preamble, which did not mention the RMB 250 million. The Settlement Deed dealt with disposal of foreign interests, so Mr. Wu submits, but not internal matters like breach of director’s duties or misappropriation of funds. With respect, Mr. Wu is correct only in the literal sense. He overlooks the reference to “出資爭議” and the reference to the litigations and arbitrations in the preamble which were directly related to the RMB 250 million. 40.Mr. Ho claims that “the purchase price offered by Choice Tone took into full account of the debt owed to the [Project Companies] by the plaintiff [i.e. the Lucky Companies] in the Jinfu Action [i.e. HCA 447 of 2006]. Hence [the Lucky Companies] sold their interests in the [Project] upon deducting the relevant sum.” I cannot agree. It was true that as a result of the decisions in HCA 447 of 2006 and CACV 266 of 2007, there was a liability due from the Lucky Companies to Jinfu. However, that liabliltiy had already been taken up by Choice Tone. Further, it was Glorious Sun (not the Lucky Companies) who was the seller of the foreign side’s interests. The Lucky Companies had already ratified the 2004 Assignment pursuant to the Settlement Deed and they were not entitled to receive any sum from the sale of such interests. If Lucky Companies were permitted to succeed in the present action, they would receive a windfall. 41.Don’t forget that it was originally intended that GZCK would be a party to the settlement. If it was true that the Lucky Companies did intend to sell their interests in the Project upon deducting the outstanding balance of the RMB 250 million loan, one wonders why that was not dealt with in the Settlement Deed. If the Lucky Companies were concerned that there was no evidence of discharge of liability over the RMB 250 million given to them or that the sum had not been properly received by GZCK, an express provision could have been included in the settlement. 42.I am of the view that the present action fell within the scope of the Settlement Deed. Argument (ii) fails. 43.With regard to argument (iii), Mr. Wu submits that there was no evidence of discharge of liability over the RMB 250 million given to the Lucky Companies. As a matter of law, the RMB 250 million had not been properly received by GZCK. The Lucky Companies, as a matter of right was entitled to claim back the money. There was no unjust enrichment to the Lucky Companies. Yes, Mr. Wu concedes, there had been previous inconsistent actions or arbitration proceedings but they had been settled without adjudication. The Lucky Companies were entitled to seek adjudication in the present action. I am unable to agree. As pointed out by Mr. Mak, the supporting affirmation of Mr. Lao has set out the destination of the 5 remittances and there was no valid challenge from the Lucky Companies. One of the objectives of the Settlement Deed was to settle the disputes between the parties in relation to the issue of capital injection. The RMB 250 million loan was at the core of the Lucky Companies Arbitration, Inter Ease Arbitration and HCA 1720 of 2006 referred to in paragraph 20 above. By settling those actions or arbitrations without adjudication, the underlying issue must have been settled as well. Argument (iii) fails. 44.With regard to argument (iv), Mr. Wu is only correct literally. GZCK and Ms Shi were not a parties to the Settlement Deed and cannot, in their own right, rely on it. They were not “parties to previous litigations or arbitrations” within the meaning of Clause 17.1(c) either. However, under Clause 17.1(a) of the Settlement Deed, the Lucky Companies had expressly warranted that “there were no action or no intended action against Kwong Ian or any of its associates” apart from those actions expressly mentioned in the Settlement Deed. By Clauses 17.1(g) and 18.2(ii)(b), “associates” of Kwong Ian expressly included GZCK. Clause 17.1(d) also prohibited Mr. Ho’s camp from suing the directors of Kwong Ian, which would include Ms Shi. 45.Clauses 17.1(e), (g) and 18.6 required Mr. Ho and Golden Tree (not the Lucky Companies) to provide an indemnity to Kwong Ian and its associates in case they are sued by the Lucky Companies. An agreement to indemnify and hold harmless contains within it by necessary implication an implied term not to sue: Deepak Fertilisers and Petrochemicals Corporation v. ICI Chemicals & Polymers Ltd. and others [1999] 1 Lloyds Representative 387. In the light of the specific references to Lucky Companies in these Clauses, the necessary implication that Mr. Ho and his camp should also procure the Lucky Companies not to sue as well. 46.The clear wording of the Settlement Deed was to achieve a full and final settlement of all the disputes between the 2 rival camps. Any claims which the Lucky Companies had against the defendants would have been discharged, compromised or settled by the Settlement Deed. I find that the terms of the Settlement Deed clearly encompassed the present action and the present defendants. It would be ludicrous to suggest that by deliberately concealing one action and hiding behind the fact that an associate or its director of Kwong Ian was not specifically named, the Lucky Companies could now ignore the settlement with impunity, thereby reopening settled disputes. 47.Having considered the effect of the Debt Restructuring Agreement and the Settlement Agreement, I now proceed to consider each of the applications under the summonses. THE APPLICATION TO INTERVENE 48.GZCK and Ms Shi were not parties to the Settlement Deed and cannot directly enforce that document. However, Kwong Ian does have a sufficient interest in this action. It can be in breach of its loan agreements with GZCK if it is established that it failed to make full repayment of the loans it owed to GZCK. Ms Shi can seek an indemnity from Kwong Ian because she was acting as its agent when making the 5 remittances purportedly in discharge of Kwong Ian’s own indebtedness owed to GZCK. The commercial effect of the Lucky Companies suing GZCK and Ms Shi is very similar to suing Kwong Ian. This is against the spirit of the Settlement Deed and Kwong Ian seeks to restrain the flagrant breach by the Lucky Companies. 49.Mr. Wu submits that the claims against Kwong Ian were time-barred and it was their deliberate decision not to pursue any claim against Kwong Ian, hence the withdrawal of the claim against it. D1 and D3 do not require the presence of Kwong Ian to invoke the Settlement Agreement. Their arguments on discharge of the claims and abuse of process would have remained the same even without the presence of Kwong Ian. 50.The plaintiffs are of course at liberty to decide whether to claim against Kwong Ian. However, the whole purpose of Kwong Ian intervening is to enforce clauses 17 and 18 for the benefit of the defendants and to prevent the Lucky Companies from advancing the very arguments as they are now doing, i.e. that the defendants were not parties to the Settlement Deed. 51.A stranger to a contract is not entitled to rely on the terms of the contract in defence to a claim. However, where there is a clear breach by a party and if all parties are before the court, the proper order is to dismiss the claim: Snelling v. John Snelling Ltd. [1973] 1 QB 87. 52.In that case, 3 brothers co-owned a family company and all of them were directors of it. The company owed them considerable sums. By a written agreement among the brothers, it was agreed that if a director was to resign, he would immediately forfeit all moneys owed to him by the company and the moneys would be used towards repaying a mortgage. A mortgage agreement was signed on the same day as the written agreement. About 3 months later, the plaintiff brother resigned as a director and sued the company in order to recover the moneys due to him from it. The other 2 brothers joined in as parties to the action and counterclaimed for a declaration that any sum otherwise due to the plaintiff had been forfeited pursuant to the agreement. Ormrod J held that the company was a stranger to the contract and was not entitled to rely on it as a defence. Nevertheless there was a clear breach of the agreement by the plaintiff brother in suing the company. It should be a proper case in which to grant a stay of all further proceedings. He added that he should go further if all the parties to the agreement, including the company who was to benefit under it, were before the court, the proper order was to dismiss the claim. 53.The application to intervene is rightly taken out by Kwong Ian and I grant the same. STRIKING OUT THE ACTION The Principles on Striking Out 54.The application is premised on the claim being frivolous, vexatious or is otherwise an abuse of the process of the Court. A claim is frivolous if it is incapable of reasoned argument, without foundation or cannot possibly succeed. A claim is vexatious if it is oppressive and/or lacks bona fides: Hong Kong Civil Procedure 2011, para 18/19/8. A claim is an abuse of process if it misuses the court procedure or seeks to relitigate issues decided in earlier proceedings: Hong Kong Civil Procedure 2011, para 18/19/10-11. 55.In Henderson v. Henderson (1843) 3 Hare 100, at 114-5, Sir James Wigram VC said,
56.In Johnson v. Gore Wood & Co.[2002] 2 AC 1, Lord Bingham says,
57.A party should generally be barred by the rule in Henderson v. Henderson from raising a claim in a second action by deliberately concealing the real facts on which he now relies from the court in order to put forward a bogus claim which is radically inconsistent with them. Vervaeke (formerly Messina) v. Smith: [1983] 1 AC 145, at 157. 58.The rule in Henderson v. Henderson is not confined to a claim which led to a judgment but also to one which led to a compromise. In Johnson v. Gore Wood, above, it was held that:
Application of the Law to the Facts 59.Ms. Shi’s transfer of the RMB 250 million to the 1st defendant was authorized under the Debt Restructuring Agreement. That Agreement was made by, amongst others, all the then registered members of the Lucky Companies. Upon the Duomatic principle, the claim against the defendants cannot possibly succeed and is hence frivolous. 60.The alleged “diversion” of the RMB 250 million occurred in 2001 and Mr. Ho was well aware of the same. It formed the subject matter of the IP report prepared under HCMP 505/2006. However, it was only in 2007 that the Lucky Companies instituted the present action to avoid limitation period from expiring. It was not served only 3 years later after the substantive dispute was settled. If, as alleged by Mr. Ho in his affirmation, Ms. Shi was responsible for keeping the accounts in relation to this sum, there could have been a bona fide request for accounts from her instead. The present action lacked bona fides and is clearly vexatious. 61.The present claim is in relation to the RMB 250 million, which belonged to the subject of the litigations and arbitrations set out in paragraph 20(ii) to (v) above. The Lucky Companies could and should have brought in the parties to the present action there so as to have the core issues of who to pay what determined once and for. By not doing so, and subsequently pursuing the present action after the previous litigations and arbitrations have been settled is an abuse of process of the court. It is even worse when the Lucky Companies retained the right to pursue the present action by a deliberate concealment during settlement negotiation. Such pursuit is a collateral attack on the settlement and an act of dishonesty. 62.The statement of claim should be struck out and the action dismissed. SETTING ASIDE LEAVE FOR SERVICE OUT OF JURISDICTION 63.The grounds for setting aside service are as follows:
Failure to Fall Within Ambit of Order 11, rule 1(1) 64.At the ex parte stage, the Lucky Companies relied on Order 11, rule 1(1)(c), (d)(i), (f) and (p). 65.Sub-rule 1(1)(c) requires the claim to be brought against a person duly served within or out of the jurisdiction and the person out of the jurisdiction is a necessary or proper party thereto. It is a precondition of leave to serve out of the jurisdiction under this provision that another defendant has already been served within or out of the jurisdiction: Hong Kong Civil Procedure, 2011, para.11/1/17B. At the time of the ex parte application, no party was served. Mr. Wu does not appear to insist on reliance on this rule in his submission. 66.Sub-rule 1(1)(d)(i) requires the claim to be brought to enforce, rescind, dissolve, annul or otherwise affect a contract or to recover damages or obtain other relief in respect of a breach of contract which was made within the jurisdiction. There is no cause of action based on contract here. A claim against a director of a company based merely upon the fact of his appointment in the absence of a specific contract of employment did not fall within the ambit of this sub-rule: Newtherapeutics Ltd. v. Katz. [1991] Ch 26. Mr. Wu does not insist on reliance on this sub-rule either. 67.Sub-rule 1(1)(f) provides that “the claim is founded on a tort and the damage was sustained, or resulted from an act committed, within the jurisdiction.” The Lucky Companies rely on this rule against Ms Shi. It is alleged that Ms Shi breached her fiduciary and equitable duties owed to the Lucky Companies. Those were tortious acts which resulted in damage to the Lucky Companies, which are Hong Kong companies. Further or alternatively, the Lucky Companies say that Ms Shi also breached her duty of care, skill and diligence owed to the Lucky Companies under common law. 68.A director’s fiduciary duty is described thus,
69.However, a claim based on equitable restitutionary remedies for breach of trust or fiduciary duty is not a claim in tort and must be brought within some other paragraph.: ICS Technology Ltd. V. Guerin [1992] 2 Lloyd’s Rep 430, at 432; Dicey, Morris & Collins, the Conflict of Laws, 14 ed, 2006, para 11-220. In addition, Mr. Wu is unable to point to an act committed by this director within Hong Kong. Though books and accounts were in kept Hong Kong as he submits, those were not “acts” committed in Hong Kong. Damage was also not sustained in Hong Kong. This sub-rule therefore does not assist the Lucky Companies. 70.Sub-rule 1(1)(p) provides that “the claim is brought for money had and received or for an account or other relief against the defendant as constructive trustee, and the defendant’s alleged liability arises out of acts committed, whether by him or otherwise, within the jurisdiction.” The act said to result in D1 being called upon for an account was committed by a director of the Hong Kong company, i.e. D3. Mr. Wu submits that though Ms Shi was a Mainlander, she had an office in Hong Kong and the company’s alter ego carried on business in Hong Kong. Therefore, the act of transfer of money was in a way executed in Hong Kong. I disagree. The alleged acts causing the damage were not committed in Hong Kong. The remittances from Jinfu’s accounts to GZCK’s account took place in Guangzhou. The alleged absence of proper authority or instructions was not an “act”, let alone an act of the 1st or 3rd defendant. This sub-rule does not assist the plaintiffs. Failure to Prove a Serious Issue to Be Tried 71.Once satisfied that the plaintiff’s claims ought to be struck out, there is no more serious issue to be tried. High Court of Hong Kong not the Natural and Proper Forum 72.All the relevant facts giving rise to the causes of action took place in Guangzhou. Most of the witnesses are based in Guangzhou or Tianjin. The only connection to Hong Kong is the fact that the Lucky Companies are Hong Kong companies and Ms Shi was their director. Those are not sufficient to show that the High Court of Hong Kong is the natural and proper forum. Material Non-Disclosure 73.As to material non-disclosure,
74.There was serious and material non-disclosure on the part of the Lucky Companies when applying for leave to serve out of jurisdiction:
75.These are most material matters for the Court to decide whether or not to assume jurisdiction. In failing to make full and frank disclosure, the plaintiffs have caused the learned Masters to exercise their discretion to grant leave to and to serve the writ out of jurisdiction and extend the validity of the writ for 3 times. But for such leave, the limitation period would have expired for more than 3 years. Leave to serve the writ out of jurisdiction should be set aside even on the ground of failure to make full and frank disclosure alone. 76.For any of the reasons put forth by Mr. Mak, service of the writ out of jurisdiction ought to be set aside. COSTS 77.I find the plaintiffs’ conduct to be most deplorable. They lacked candour at the negotiation table. They showed total disrespect to a full and final settlement. They were selective in pleading facts in the statement of claim. They showed blatant disregard of their duty of full and frank disclosure at the ex parte stage. They simply abused the court’s process in trying to relitigate bogus issues already settled. Their whole conduct was to vex the defendants who, on the face of the Settlement Deed, were not parties thereto. 78.Such conduct calls for sanction in terms of costs. Clauses 17.1(g) and 18.6 of the Settlement Deed required Mr. Ho & Golden Tree (but not the Lucky Companies) to indemnify the other parties to the Settlement Deed to ensure that there is no unnecessary litigation after the settlement. By the same token, the Lucky Companies who so flagrantly breached the Settlement Deed should provide an indemnity as to costs. 79.I therefore order, on a nisi basis, that costs should be to the 1st and 3rd defendants and the intervener on indemnity basis, to be made absolute 14 days after the handing down of this decision. CONCLUSION 80.I give leave for the intervener to be joined for the purposes stated in its summons. I set aside service of the writ out of jurisdiction, strike out the statement of claim and dismiss the action. I make an order nisi that costs be to the defendants and Kwong Ian on indemnity basis, to be made absolute 14 days after the handing down of this judgment. 81.The defendants and intervener shall file and serve their costs statement by 21 January 2011. The plaintiffs shall file and serve their grounds in opposition by 27 January 2011. Summary assessment of costs shall be done on 28 January 2011 on the papers; no attendance is required. 82.I thank counsel for their able assistance.
Mr Paul Wu, instructed by Messrs S.H. Chan & Co., for the plaintiffs Mr Bernard Mak, instructed by Messrs Gallant Y.T. Ho & Co., for the 1st and 3rd defendants and the Intended Intervener |
Cases cited in this judgment
Other judgments that cite this case