YEARICH LTD v. MOSTOP LTD AND OTHERS

YEARICH LTD v. MOSTOP LTD AND OTHERS

Material non-disclosure by plaintiffs in the ex parte application — notably the inclusion of an overly wide class of 'Group Companies' and failure to disclose that the 1st defendant lacked responsibility for cash takings of many listed companies — materially affected the weighing exercise and rendered the Anton Piller order improperly wide; accordingly the court discharged the Anton Piller order and dismissed the inspection summons, directing that ordinary discovery procedures (including defendants serving supplemental lists after review of preserved electronic records by their solicitors) be pursued.

Citation
YEARICH LTD v. MOSTOP LTD AND OTHERS
Parties
1st Plaintiff: Step By Step Limited; 2nd Plaintiff: New Success Enterprises Limited; 3rd Plaintiff: Step Up Limited; 1st Defendant: Dorothy Jane Furness; 2nd Defendant: Raphael Homer Echaluce; 3rd Defendant: Entertain Company Limited; 4th Defendant: Mad Dogs Wanchai Public House Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 February 2009
Case Number
HCMP847/2007
Procedural Posture
Company Litigation: Breach of Fiduciary Duty, Proprietary and Disclosure Claims; Interlocutory Relief (anton Piller) / Interlocutory — Hearing of Continuation Summons to Continue Anton Piller Order and Inspection Summons
Outcome
Anton Piller order discharged; Inspection Summons dismissed; liberty to apply
Legal Topics
Anton Piller Order, Material Non Disclosure, Search and Seizure, Discovery and Disclosure of Electronic Records, Fiduciary Duties, Proportionality of Relief, Surveillance and Oppressive Conduct
Source Language
EN
Company Law Civil Procedure Equity and Trusts Evidence and Disclosure Anton Piller Order Material Non Disclosure Search and Seizure Discovery and Disclosure of Electronic Records +3 more

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Parties

Step By Step Limited

1st Plaintiff

New Success Enterprises Limited

2nd Plaintiff

Step Up Limited

3rd Plaintiff

Dorothy Jane Furness

1st Defendant

Raphael Homer Echaluce

2nd Defendant

Entertain Company Limited

3rd Defendant

Mad Dogs Wanchai Public House Limited

4th Defendant

Procedural Posture

Company Litigation: Breach of Fiduciary Duty, Proprietary and Disclosure Claims; Interlocutory Relief (anton Piller) / Interlocutory — Hearing of Continuation Summons to Continue Anton Piller Order and Inspection Summons

Legal Issues

  1. 1 Whether material non-disclosure in the ex parte application justified discharging the Anton Piller order
  2. 2 Whether the Anton Piller order was drafted and executed beyond what was necessary and proportionate
  3. 3 Whether the plaintiffs were entitled to inspect electronic records seized under the order or whether ordinary discovery suffices

Ratio Decidendi

Material non-disclosure by plaintiffs in the ex parte application — notably the inclusion of an overly wide class of 'Group Companies' and failure to disclose that the 1st defendant lacked responsibility for cash takings of many listed companies — materially affected the weighing exercise and rendered the Anton Piller order improperly wide; accordingly the court discharged the Anton Piller order and dismissed the inspection summons, directing that ordinary discovery procedures (including defendants serving supplemental lists after review of preserved electronic records by their solicitors) be pursued.

Court Disposition

Anton Piller order discharged; Inspection Summons dismissed; liberty to apply

Orders

  • Anton Piller Order discharged
  • Inspection Summons dismissed