CHEUNG TAK MAN DESMOND AND ANOTHER v. LAM SIU SUN DENNIS AND ANOTHER

CHEUNG TAK MAN DESMOND AND ANOTHER v. LAM SIU SUN DENNIS AND ANOTHER

The court held the Schedule to the Bruce Order comprised undertakings to the court rather than an untouchable Tomlin settlement; H&M's resignation constituted a material, unforeseen change preventing compliance with the original undertakings and justified release of the defendants from those undertakings on condition that LW&L be appointed as replacement Cessation Agent; to minimise dispute the court ordered H&M to continue to hold HK$1,851,048.50 on trust for HTP and the defendants' replacement cessation agent; consequential orders were made granting the defendants' summons dated 28 April 2020 in amended terms and no further order on the plaintiffs' summons, with no order as to costs.

Citation
[2020] HKCFI 2763
Parties
1st Plaintiff: CHEUNG TAK MAN DESMOND; 2nd Plaintiff: CHIU SZE WAI WILFRED; 1st Defendant: LAM SIU SUN DENNIS; 2nd Defendant: LEE MOSES
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 October 2020
Case Number
HCA262/2019
Procedural Posture
Civil Action Partnership Dissolution and Enforcement of Undertakings / Decision on Cross‑applications by Summonses for Release From Undertakings, Appointment of Cessation Agent and Interim Relief (chambers)
Outcome
Defendants' summons dated 28 April 2020 granted in amended terms; defendants released from original undertakings to permit appointment of LW&L as replacement Cessation Agent; H&M to continue to hold HK$1,851,048.50 on trust for HTP and the defendants' replacement cessation agent; no further order required on...
Legal Topics
Cessation Agent Appointment, Undertakings to Court, Tomlin Order Characterization, Protection and Holding of Client Funds, Variation/release of Undertakings
Source Language
EN
Partnership Law Civil Procedure Solicitors Professional Regulation Trusts and Client Money Cessation Agent Appointment Undertakings to Court Tomlin Order Characterization Protection and Holding of Client Funds +1 more

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Parties

CHEUNG TAK MAN DESMOND

1st Plaintiff

CHIU SZE WAI WILFRED

2nd Plaintiff

LAM SIU SUN DENNIS

1st Defendant

LEE MOSES

2nd Defendant

Procedural Posture

Civil Action Partnership Dissolution and Enforcement of Undertakings / Decision on Cross‑applications by Summonses for Release From Undertakings, Appointment of Cessation Agent and Interim Relief (chambers)

Legal Issues

  1. 1 Whether the Schedule to the Bruce Order was a Tomlin order or constituted undertakings to the court
  2. 2 Whether the court had jurisdiction to release the defendants from their undertakings and accept alternative undertakings
  3. 3 Whether LW&L was suitable to act as replacement Cessation Agent for the defendants' files

Ratio Decidendi

The court held the Schedule to the Bruce Order comprised undertakings to the court rather than an untouchable Tomlin settlement; H&M's resignation constituted a material, unforeseen change preventing compliance with the original undertakings and justified release of the defendants from those undertakings on condition that LW&L be appointed as replacement Cessation Agent; to minimise dispute the court ordered H&M to continue to hold HK$1,851,048.50 on trust for HTP and the defendants' replacement cessation agent; consequential orders were made granting the defendants' summons dated 28 April 2020 in amended terms and no further order on the plaintiffs' summons, with no order as to costs.

Court Disposition

Defendants' summons dated 28 April 2020 granted in amended terms; defendants released from original undertakings to permit appointment of LW&L as replacement Cessation Agent; H&M to continue to hold HK$1,851,048.50 on trust for HTP and the defendants' replacement cessation agent; no further order required on...

Orders

  • Grant defendants\' summons dated 28 April 2020 in terms, subject to amendment reflecting H&M\'s continued role as trustee of HK$1,851,048.50
  • Order that Messrs. Lee, Wong & Lam (LW&L) be appointed as replacement Cessation Agent for the defendants\' files