ANTHONY JAMES HATTON v. DOROTHY JANE FURNESS AND OTHERS

ANTHONY JAMES HATTON v. DOROTHY JANE FURNESS AND OTHERS

Material non-disclosure was established because the ex parte materials failed to adequately disclose (a) that significant repayments had been made and the plaintiffs' position regarding closure of the misappropriation issue and (b) that the Anton Piller order as drafted swept up an extensive list of unrelated 'Group...

Source-derived case information.

Citation
ANTHONY JAMES HATTON v. DOROTHY JANE FURNESS 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
HCMP845/2007
Procedural Posture
Company Law; Anton Piller Order; Equitable Proprietary Claims / Interlocutory Hearing on Continuation of Anton Piller Order and Inspection Summons (decision to Discharge Order)
Outcome
Anton Piller order discharged; Inspection Summons dismissed; liberty to apply; costs awarded to 1st and 2nd defendants (order nisi with certificate for two counsel).
Legal Topics
Anton Piller Order, Ex Parte Full and Frank Disclosure, Material Non Disclosure, Electronic Evidence Inspection, Constructive Trust, Solicitor's Duty in Discovery
Source Language
en
Company Law Equity and Trusts Civil Procedure Disclosure and Discovery Injunctions/anton Piller Orders Anton Piller Order Ex Parte Full and Frank Disclosure Material Non Disclosure +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 Law; Anton Piller Order; Equitable Proprietary Claims / Interlocutory Hearing on Continuation of Anton Piller Order and Inspection Summons (decision to Discharge Order)

Legal Issues

  1. 1 Whether applicants made full and frank disclosure in ex parte Anton Piller application
  2. 2 Whether scope of Anton Piller order was overbroad and disproportionate
  3. 3 Whether execution of the order complied with its terms and was not oppressive

Ratio Decidendi

Material non-disclosure was established because the ex parte materials failed to adequately disclose (a) that significant repayments had been made and the plaintiffs' position regarding closure of the misappropriation issue and (b) that the Anton Piller order as drafted swept up an extensive list of unrelated 'Group Companies' and cash takings for which the defendant had no responsibility; those omissions made the order overbroad and disproportionate. The court therefore exercised its discretion to discharge the Anton Piller order and to dismiss the inspection summons, while noting that seized electronic records remain preserved and that ordinary discovery remains the appropriate route.

Court Disposition

Anton Piller order discharged; Inspection Summons dismissed; liberty to apply; costs awarded to 1st and 2nd defendants (order nisi with certificate for two counsel).

Orders

  • Anton Piller order (made 5-6 December 2006) discharged
  • Inspection Summons dismissed