Gurdas S Choithramani v. The Hong Kong and Shanghai Banking Corporation Ltd

HCA 2073/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2073 OF 2011

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BETWEEN

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R U L I N G

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1.By an application dated 17 July 2012, the defendantseeks to strike out the entirety of the plaintiff’s Statement of Claim in this matter on the grounds that it discloses no reasonable cause of action, it is frivolous and vexatious and constitutes an abuse of process. 

2.The defendant raises four main arguments: no locus standi; abuse of process; limitation and the rule against reflective loss. 

3.As to the first of these, no locus standi, Mr Fung SC, counsel for the defendant, asserts that as the causes of action pleaded in the Statement of Claim have accrued before or upon the plaintiff’s bankruptcy, that the only party who can prosecute these proceedings in respect of the purported causes of action is the Official Receiver. 

4.Mr Reynolds, counsel on behalf of the plaintiff accepts that Mr Fung’s analysis is correct.  The court also accepts that this is the position, and as such the Statement of Claim is bound to be struck out on the basis that the plaintiffhas no locus standi.

5.That being the case, Mr Reynolds submits that the court has no jurisdiction to determine Mr Fung’s other heads of complaint, the court having no jurisdiction to make further findings or orders in respect of a party who has no locus standi in the proceedings.

6.Mr Fung SC maintains that despite the plaintiff having no locus standi the court can and should, pursuant to Order 18 rule 19, nevertheless hear and determine his other complaints.

7.In my view, once it is finally determined that a plaintiff has no locus standi to bring or maintain these proceedings, the court has no jurisdiction to nevertheless determine the arguments advanced by Mr Fung.

8.If I am wrong about this, and if I do have jurisdiction to deal with the matters, then in my discretion I decline to do so at this stage. 

9.Order 18 rule 19 provides that a court may at any stage of the proceedings strike out a pleading.  It may be that the plaintiff will approach the Official Receiver; and it may be that the Official Receiver will assign the proceedings or consent to the plaintiff bringing an action.

10.If the Official Receiver does take his matter up, then although perhaps vexing to the defendant, there is no real prejudice as it can ventilate the same arguments at a later time, being the time that the matter is taken up by the Official Receiver.

11.However, Mr Fung submits that there is, to quote, “No real likelihood that this will happen”, and Mr Reynold’s position is that, at best, there is only a prospect that this may occur.

12.In these circumstances, it appears to me, without in any way wishing to influence the Official Receiver, that it is at leastunlikely that the Official Receiver will take this matter further. There can be no justification, in my view, in spending two to three more days of court time adjudicating upon issues which, in the event, may never need to be decided in order to resolve this case.

13.In these circumstances, I order that the Statement of Claim be struck out on the basis that the plaintiff has no locus standi to pursue this action.

Mr G O Reynolds, instructed by Jal N Karbhari & Co, for the plaintiff

Mr Eugene Fung, SC, leading Ms Janet Ho, instructed by Mayer Brown JSM, for the defendant