ASIA ALUMINUM HOLDINGS LTD AND ANOTHER v. KWONG WUI CHUN AND ANOTHER

ASIA ALUMINUM HOLDINGS LTD AND ANOTHER v. KWONG WUI CHUN AND ANOTHER

The court held that the defendants are entitled to the discovery sought because the categories of documents are directly relevant to the due diligence and financial imprudence issues, the liquidators' affidavit of non-possession was not sufficient and the conclusiveness rule did not apply given the liquidators' inadequate explanations and evidence of relevant documents in their control; accordingly the discovery summons was granted with a short modification to the compliance period.

Citation
ASIA ALUMINUM HOLDINGS LTD AND ANOTHER v. KWONG WUI CHUN AND ANOTHER
Parties
Plaintiff (liquidator): Roderick John Sutton; Plaintiff (liquidator): Fok Hei Yu; 1st Defendant: Kwong Wui Chun; 2nd Defendant: Chan Yiu Tsuan Benby
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
31 October 2017
Case Number
HCA341/2010
Procedural Posture
Civil: Company/liquidation Proceedings and Interlocutory Discovery / Interlocutory Discovery Hearing (application by Defendants for Discovery)
Outcome
Defendants' interlocutory discovery summons granted; liquidators ordered to produce specified documents
Legal Topics
Directors' Negligence, Due Diligence, Liquidators' Discovery Obligations, Relevance and Possession of Documents, Conclusiveness Rule for Affidavits, Causation/novus Actus Interveniens
Source Language
EN
Company Law Insolvency Law Civil Procedure International Commercial Transactions Directors' Negligence Due Diligence Liquidators' Discovery Obligations Relevance and Possession of Documents +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 4 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Roderick John Sutton

Plaintiff (liquidator)

Fok Hei Yu

Plaintiff (liquidator)

Kwong Wui Chun

1st Defendant

Chan Yiu Tsuan Benby

2nd Defendant

Procedural Posture

Civil: Company/liquidation Proceedings and Interlocutory Discovery / Interlocutory Discovery Hearing (application by Defendants for Discovery)

Legal Issues

  1. 1 Whether defendants were negligent in causing subsidiary to enter Polywell transaction
  2. 2 Whether specific classes of documents (CDB financing, PRC legal opinions, internal and external communications, liquidators' documents) are relevant to defendants' defence
  3. 3 Whether the liquidators have documents in their custody, power and possession and must produce them

Ratio Decidendi

The court held that the defendants are entitled to the discovery sought because the categories of documents are directly relevant to the due diligence and financial imprudence issues, the liquidators' affidavit of non-possession was not sufficient and the conclusiveness rule did not apply given the liquidators' inadequate explanations and evidence of relevant documents in their control; accordingly the discovery summons was granted with a short modification to the compliance period.

Court Disposition

Defendants' interlocutory discovery summons granted; liquidators ordered to produce specified documents

Orders

  • Order that the liquidators produce the documents specified in the defendants' 2nd discovery summons as described in the judgment
  • Compliance period in paragraphs 1 and 2 of the summons extended to 28 days instead of 21 days