MCT ENTERPRISES LTD. (a company incorporated in British Columbia, Canada) AND ANOTHER v. BANK OF CHINA (HONG KONG) LTD AND ANOTHER

MCT ENTERPRISES LTD. (a company incorporated in British Columbia, Canada) AND ANOTHER v. BANK OF CHINA (HONG KONG) LTD AND ANOTHER

The court found the threshold for a disclosure order and a gagging order was met and granted the orders against the 1st defendant; because BOComm had not been given sufficient time to respond to the ex parte application the court limited immediate relief against BOComm to a gagging order and disclosure in respect of one specified account and adjourned the remainder; on the inter partes summons, after BOComm provided information and documents, the court granted the draft order with an amendment that there be no order as to costs of the inter partes summons including costs reserved from the ex parte hearing in respect of the 2nd defendant.

Citation
[2020] HKDC 396
Parties
1st Plaintiff: MCT Enterprises Ltd.; 2nd Plaintiff: Michael Cytrynbaum; 1st Defendant: Bank of China (Hong Kong) Limited; 2nd Defendant: Bank of Communications (Hong Kong) Limited
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
3 June 2020
Case Number
DCMP1274/2020
Procedural Posture
Miscellaneous Proceedings (norwich Pharmacal and Gagging Order Application) / Decision on Inter Partes Summons (post Ex Parte Hearing)
Outcome
Inter partes summons granted in amended terms; ex parte orders largely upheld against the 1st defendant and limited against the 2nd defendant with costs reserved and then no order as to costs for the inter partes summons including costs reserved from the ex parte hearing against the 2nd defendant.
Legal Topics
Norwich Pharmacal Order, Gagging Order, Service and Notice Requirements, Tracing and Recovery of Funds, Costs
Source Language
EN
Civil Procedure Banking Law Injunctions and Equitable Relief Disclosure Orders Norwich Pharmacal Order Gagging Order Service and Notice Requirements Tracing and Recovery of Funds +1 more

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Parties

MCT Enterprises Ltd.

1st Plaintiff

Michael Cytrynbaum

2nd Plaintiff

Bank of China (Hong Kong) Limited

1st Defendant

Bank of Communications (Hong Kong) Limited

2nd Defendant

Procedural Posture

Miscellaneous Proceedings (norwich Pharmacal and Gagging Order Application) / Decision on Inter Partes Summons (post Ex Parte Hearing)

Legal Issues

  1. 1 Whether a Norwich Pharmacal disclosure order should be granted against the defendant banks to trace funds obtained by email fraud
  2. 2 Whether a gagging order was necessary to prevent tipping off and to protect the investigation
  3. 3 Whether the 2nd defendant (BOComm) had been given adequate notice of the ex parte application

Ratio Decidendi

The court found the threshold for a disclosure order and a gagging order was met and granted the orders against the 1st defendant; because BOComm had not been given sufficient time to respond to the ex parte application the court limited immediate relief against BOComm to a gagging order and disclosure in respect of one specified account and adjourned the remainder; on the inter partes summons, after BOComm provided information and documents, the court granted the draft order with an amendment that there be no order as to costs of the inter partes summons including costs reserved from the ex parte hearing in respect of the 2nd defendant.

Court Disposition

Inter partes summons granted in amended terms; ex parte orders largely upheld against the 1st defendant and limited against the 2nd defendant with costs reserved and then no order as to costs for the inter partes summons including costs reserved from the ex parte hearing against the 2nd defendant.

Orders

  • Norwich Pharmacal disclosure order and gagging order granted against Bank of China (Hong Kong) Limited in terms of the draft order.
  • Against Bank of Communications (Hong Kong) Limited: gagging order and disclosure limited to the one specified account (as ordered on 24 April 2020); balance of the application adjourned pending inter partes proceedings.