NG CHUNG KWONG AND ANOTHER v. KIM SUNGHUN AND ANOTHER

NG CHUNG KWONG AND ANOTHER v. KIM SUNGHUN AND ANOTHER

On the pleaded facts the plaintiffs established a good arguable case under the Chabra jurisdiction that funds in IDSF's HSBC bank account were assets belonging to or under the control/access of Kim such that an injunction should issue to prevent dissipation below HK$13,500,000; however the unpleaded declaratory relief that the entire HK$165,000,000 belonged to Kim was refused because it was not prayed for in the pleading and was unnecessary for the injunctive relief granted.

Citation
[2019] HKCFI 2406
Parties
1st Plaintiff: NG CHUNG KWONG VAN; 2nd Plaintiff: LEE SUN; 1st Defendant: kim sunghun; 2nd Defendant: IDS FOREX HK LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
18 September 2019
Case Number
HCA86/2019
Procedural Posture
Civil Fraud and Enforcement Proceedings Invoking Chabra Jurisdiction / Application for Default Judgment and Interlocutory Injunction (injunction Hearing in Chambers)
Outcome
Injunction granted against IDSF; unpleaded declaratory relief refused; costs to plaintiffs
Legal Topics
Default Judgment, Chabra Jurisdiction, Mareva/freezing Injunction, Declaratory Relief, Tracing and Proprietary Claims, Service of Process
Source Language
EN
Civil Procedure Fraud Injunctions Company/trust Law Enforcement Default Judgment Chabra Jurisdiction Mareva/freezing Injunction +3 more

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Parties

NG CHUNG KWONG VAN

1st Plaintiff

LEE SUN

2nd Plaintiff

kim sunghun

1st Defendant

IDS FOREX HK LIMITED

2nd Defendant

Procedural Posture

Civil Fraud and Enforcement Proceedings Invoking Chabra Jurisdiction / Application for Default Judgment and Interlocutory Injunction (injunction Hearing in Chambers)

Legal Issues

  1. 1 Whether plaintiffs established a good arguable case under Chabra to freeze assets held by a non‑party corporate defendant (IDSF) for satisfaction of judgment against Kim
  2. 2 Whether assets in IDSF's bank account were assets of or under the control/access of Kim such that they were susceptible to execution to satisfy the judgment
  3. 3 Whether the court should grant a declaratory relief that was not pleaded in the statement of claim

Ratio Decidendi

On the pleaded facts the plaintiffs established a good arguable case under the Chabra jurisdiction that funds in IDSF's HSBC bank account were assets belonging to or under the control/access of Kim such that an injunction should issue to prevent dissipation below HK$13,500,000; however the unpleaded declaratory relief that the entire HK$165,000,000 belonged to Kim was refused because it was not prayed for in the pleading and was unnecessary for the injunctive relief granted.

Court Disposition

Injunction granted against IDSF; unpleaded declaratory relief refused; costs to plaintiffs

Orders

  • Injunction restraining IDS FOREX HK LIMITED from removing, disposing of or diminishing the value of the assets in the HSBC bank account below an unencumbered value of HK$13,500,000 except for satisfaction of any judgment by the plaintiffs against Kim or unless varied or discharged by further order of the court
  • Declaration that IDSF held HK$165,000,000 belonging to Kim refused