Read the full judgment text of CACV 243/2014 on BabelCite. This Court of Appeal judgment was delivered on 11 March 2015 before Hon Lam VP, Barma JA and Poon J.
Civil procedure – Mareva injunction – receivership – section 21M of the High Court Ordinance – interim relief in aid of foreign proceedings – exclusive jurisdiction clause in bills of lading – enforcement in English proceedings – parallel PRC proceedings – anti-suit injunction – international judicial comity – Chabra jurisdiction over non-party – discharge of orders – whether defendant debarred by earlier inter partes hearing from seeking discharge – Chanel Ltd v FW Woolworth & Co Ltd – whether leave of court required for company to defend after appointment of receivers – receivers' powers to discontinue foreign proceedings – undertakings offered in lieu of injunction – solicitors' conduct in representing to banks that Mareva remained in force – indemnity costs – contracts of carriage by sea from mainland China to Venezuela – bills of lading containing jurisdiction clause – 19 judgments in Ningbo Maritime Court – The Court of Appeal dismissed the appeal and upheld the discharge of the Hin-Pro Mareva, Hin-Pro Receivership Order, Soar Mareva and Soar Receivership Order. The Chanel principle does not debar a defendant from bringing a subsequent discharge application where, at the inter partes hearing, counsel expressly indicated an intention to apply to discharge once evidence was in order. The proviso to the Hin-Pro Receivership Order, properly construed, preserved the company's ability to defend the proceedings without leave, and in any event leave would almost inevitably have been granted. Hong Kong should not exercise its s.21M jurisdiction to grant Mareva relief in support of English anti-suit proceedings given the judicial conflicts between the English courts' holding that the bills of lading contained an exclusive jurisdiction clause and the PRC courts' application of PRC conflicts rules to the contrary. The Hin-Pro Mareva was disproportionate and the receivership order empowering receivers to discontinue PRC proceedings was unduly draconian. Hin-Pro's undertakings to the court provided adequate protection. The Soar Mareva and Receivership Order, founded on the Chabra jurisdiction, fell with the Hin-Pro Mareva. The plaintiff was ordered to pay Hin-Pro's costs of the appeal, and costs of the notice of motion of 20 January 2015 on the indemnity basis, given the serious view taken of the plaintiff's solicitors' representations to banks that the Mareva had not been lifted after the court refused a stay.
Legal issues: Effect of failure to seek discharge at inter partes hearing on subsequent discharge application · Whether leave of court is required for company to defend itself after appointment of receivers · Whether section 21M relief should be refused due to judicial conflicts with PRC proceedings · Discretionary refusal of Hin-Pro Mareva and Hin-Pro Receivership Order · Discharge of Soar Mareva and Soar Receivership Order · Costs of notice of motion of 20 January 2015
Outcome: Appeal dismissed; orders of DHCJ Chan discharging the Hin-Pro Mareva, Hin-Pro Receivership Order, Soar Mareva and Soar Receivership Order upheld.
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