張才奎所託管中國山水投資有限公司股份及另一人 v. 張才奎及另一人

張才奎所託管中國山水投資有限公司股份及另一人 v. 張才奎及另一人

The court held Hong Kong is clearly the appropriate forum to determine the plaintiffs' ownership claim over shares in CSI because title to shares is governed by the lex situs (Hong Kong law); the ownership claim falls within Order 11 r.1(1)(i) and leave to serve out/substituted service was properly granted in respect of that claim. The corporate misconduct claim did not fall within the Order 11 gateways and the ex parte applications failed to distinguish or disclose that separate claim; leave for service as to the corporate misconduct claim was set aside. No broader setting aside for material non-disclosure was warranted.

Citation
張才奎所託管中國山水投資有限公司股份及另一人 v. 張才奎及另一人
Parties
Plaintiff: 1st plaintiffs; Plaintiff: 2nd plaintiffs; 1st Defendant: Mr Zhang Caikui; 2nd Defendant: Mr Li Yanmin
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
13 May 2015
Case Number
HCA1661/2014
Procedural Posture
Civil Proprietary (trust) and Corporate Claims / Interlocutory (applications to Set Aside Substituted Service and Service Out; Injunctive and Receivership Applications Pending)
Outcome
1st defendant's applications partly allowed and partly dismissed
Legal Topics
Substituted Service, Service Out of Jurisdiction (order 11), Constructive Trust, Discretionary Trust, Lex Situs, Exclusive Jurisdiction Clause, Forum Non Conveniens, Statutory Derivative Action, Injunctive Relief, Receivership
Source Language
EN
Trusts and Equity Conflict of Laws Company Law Civil Procedure International Jurisdiction Substituted Service Service Out of Jurisdiction (order 11) Constructive Trust +7 more

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Parties

1st plaintiffs

Plaintiff

2nd plaintiffs

Plaintiff

Mr Zhang Caikui

1st Defendant

Mr Li Yanmin

2nd Defendant

Procedural Posture

Civil Proprietary (trust) and Corporate Claims / Interlocutory (applications to Set Aside Substituted Service and Service Out; Injunctive and Receivership Applications Pending)

Legal Issues

  1. 1 Whether there is a serious issue to be tried
  2. 2 Whether the claims fall within Order 11 r.1(1) gateways for service out of jurisdiction
  3. 3 Whether Hong Kong is clearly or distinctly the appropriate forum (forum non conveniens)

Ratio Decidendi

The court held Hong Kong is clearly the appropriate forum to determine the plaintiffs' ownership claim over shares in CSI because title to shares is governed by the lex situs (Hong Kong law); the ownership claim falls within Order 11 r.1(1)(i) and leave to serve out/substituted service was properly granted in respect of that claim. The corporate misconduct claim did not fall within the Order 11 gateways and the ex parte applications failed to distinguish or disclose that separate claim; leave for service as to the corporate misconduct claim was set aside. No broader setting aside for material non-disclosure was warranted.

Court Disposition

1st defendant's applications partly allowed and partly dismissed

Orders

  • Set aside the leave for substituted service granted by Master Hui on 21 November 2014 in all three actions and the leave for service out granted by Master Chow on 20 November 2014 in HCA 1661/2014 insofar as they relate to paragraph 31 of the amended statements of claim in the three actions (ie the corporate...
  • Dismiss the 1st defendant's summonses dated 27 November 2014 to set aside substituted service and summonses dated 18 February 2015 to set aside leave for service out insofar as they relate to the ownership claims.