NMH Holdings Limited v. The Crestmark Developments Limited Partnership

NMH Holdings Limited v. The Crestmark Developments Limited Partnership

Court granted a limited adjournment to January 9, 2013 for a 23-day trial, ordered the NMH Parties to deliver within 21 days an affidavit verifying the thoroughness and scope of their document searches addressing identified categories, granted Mr. Fung leave to amend his response to counterclaim based on a newly produced 1999 release, severed specified damages claims for separate trial, and dismissed the defendants' application for a second discovery of Mr. Sixt (and denied discovery of Mr. Li when a more appropriate representative was available); costs in the cause.

Citation
2012 BCSC 2215
Parties
Plaintiffs: NMH Holdings Limited; Hutchison Whampoa Properties Canada (One) Ltd.; Hutchison Whampoa Properties Canada (Two) Ltd.; Hutchison Whampoa Properties Canada (Three) Ltd.; Hutchison Whampoa Properties Canada (Four) Ltd.; Hutchison Whampoa Properties Canada (Five) Ltd.; Hutchison Whampoa Properties Canada (Six) Ltd.; Defendants: The Crestmark Developments Limited Partnership; The Crestmark Developments Limited carrying on business as general partner of The Crestmark Developments Limited Partnership; One West Holdings Ltd.; Defendants by Counterclaim: Hutchison Whampoa Limited; Warmglow Limited; Wai Ying Fung; John Doe No. 1; John Doe No. 2; Defendant by Counterclaim (individual): Wai Ying Fung
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
29 June 2012
Procedural Posture
Civil Action for Specific Performance of Option to Purchase and Related Counterclaims Including Damages and Allegations of Breach of Fiduciary Duty and Conspiracy / Pre Trial Applications: Adjournment, Document Production Dispute, Requests for Affidavit of Documents, Examinations for Discovery and Amendment to Response to Counterclaim (oral Reasons)
Outcome
Applications partly granted and partly dismissed: trial adjourned; affidavit of documents ordered; leave to amend granted for Mr. Fung; request for second discovery denied; severance of certain damages claims ordered; costs in the cause.
Legal Topics
Specific Performance, Option to Purchase, Fiduciary Duty and Conspiracy, Document Production and Disclosure, Affidavit of Documents, Examinations for Discovery, Adjournment of Trial, Severance of Issues, Commonality of Interest for Discovery
Source Language
English
Contract Equity Real Property Civil Procedure Discovery Corporate Law Specific Performance Option to Purchase +7 more

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Parties

NMH Holdings Limited; Hutchison Whampoa Properties Canada (One) Ltd.; Hutchison Whampoa Properties Canada (Two) Ltd.; Hutchison Whampoa Properties Canada (Three) Ltd.; Hutchison Whampoa Properties Canada (Four) Ltd.; Hutchison Whampoa Properties Canada (Five) Ltd.; Hutchison Whampoa Properties Canada (Six) Ltd.

Plaintiffs

The Crestmark Developments Limited Partnership; The Crestmark Developments Limited carrying on business as general partner of The Crestmark Developments Limited Partnership; One West Holdings Ltd.

Defendants

Hutchison Whampoa Limited; Warmglow Limited; Wai Ying Fung; John Doe No. 1; John Doe No. 2

Defendants by Counterclaim

Wai Ying Fung

Defendant by Counterclaim (individual)

Procedural Posture

Civil Action for Specific Performance of Option to Purchase and Related Counterclaims Including Damages and Allegations of Breach of Fiduciary Duty and Conspiracy / Pre Trial Applications: Adjournment, Document Production Dispute, Requests for Affidavit of Documents, Examinations for Discovery and Amendment to Response to Counterclaim (oral Reasons)

Legal Issues

  1. 1 Whether the trial should be adjourned from September 17, 2012 and on what terms
  2. 2 Whether the NMH Parties' document production is adequate and whether they must deliver an affidavit verifying their list of documents
  3. 3 Whether defendants are entitled to examine both Victor Li and Frank Sixt (multiple examinations for discovery) and whether a second discovery should be permitted

Ratio Decidendi

Court granted a limited adjournment to January 9, 2013 for a 23-day trial, ordered the NMH Parties to deliver within 21 days an affidavit verifying the thoroughness and scope of their document searches addressing identified categories, granted Mr. Fung leave to amend his response to counterclaim based on a newly produced 1999 release, severed specified damages claims for separate trial, and dismissed the defendants' application for a second discovery of Mr. Sixt (and denied discovery of Mr. Li when a more appropriate representative was available); costs in the cause.

Court Disposition

Applications partly granted and partly dismissed: trial adjourned; affidavit of documents ordered; leave to amend granted for Mr. Fung; request for second discovery denied; severance of certain damages claims ordered; costs in the cause.

Orders

  • Trial adjourned from September 17, 2012 to commence January 9, 2013 for 23 days
  • Parties to exchange notices to admit in accordance with the Supreme Court Civil Rules