PACIFIC ELECTRIC WIRE & CABLE CO LTD v. HARMUTTY LTD AND OTHERS

Leave to appeal was refused because, although the question on the scope of the fraud exception to Order 14 was arguable and of importance, the appeal court concluded there are sufficiently triable issues on the plaintiff's proprietary claims against the corporate defendants making the case unsuitable for summary disposal under Order 14; consequently no leave to appeal was granted and the applicant was ordered to pay costs.

Citation: PACIFIC ELECTRIC WIRE & CABLE CO LTD v. HARMUTTY LTD AND OTHERS
Parties: Plaintiff/applicant: Pacific Electric Wire & Cable Company Limited; 18th Defendant (1st Respondent in Famv28/2009): Blinco Enterprises Limited; 19th Defendant (2nd Respondent in Famv28/2009): Patagonia Limited; 1st Defendant (1st Respondent in CACV 210/famv29): Texan Management Limited; 2nd Defendant: Clipper Investment Limited; 3rd Defendant (2nd Respondent): Pacific Capital (Asia) Limited; Defendant/respondent: All Dragon International Limited; 5th Defendant: PCL Holdings Limited; 1st Defendant/respondent (in Other Related Appeals): Gold Global Limited; 2nd Defendant/respondent: PCL Nominees Limited; 3rd Defendant/respondent: Greateam Limited; Individual Defendant/respondent: Hu Hung Chiu; 1st Defendant/respondent: Harmutty Limited; 2nd Defendant/respondent: Haddowe Limited; 3rd Defendant/respondent: Casparson Properties Limited
Court: Court of Final Appeal
Jurisdiction: Hong Kong
Judgment Date: 14 September 2009
Case Number: FAMV28/2009
Procedural Posture: Application for Leave to Appeal (civil) / Determination on Application for Leave to Appeal From Court of Appeal Decisions
Outcome: Application for leave to appeal dismissed.
Legal Topics: Order 14 Summary Judgment, Fraud Exception to Summary Judgment, Proprietary Remedies, Costs and Receivers' Expenses
Source Language: EN

Civil Procedure Equity Fiduciary Duty Appeal Order 14 Summary Judgment Fraud Exception to Summary Judgment Proprietary Remedies Costs and Receivers' Expenses

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Parties

Pacific Electric Wire & Cable Company Limited

Plaintiff/applicant

Blinco Enterprises Limited

18th Defendant (1st Respondent in Famv28/2009)

Patagonia Limited

19th Defendant (2nd Respondent in Famv28/2009)

Texan Management Limited

1st Defendant (1st Respondent in CACV 210/famv29)

Clipper Investment Limited

2nd Defendant

Pacific Capital (Asia) Limited

3rd Defendant (2nd Respondent)

All Dragon International Limited

Defendant/respondent

PCL Holdings Limited

5th Defendant

Gold Global Limited

1st Defendant/respondent (in Other Related Appeals)

PCL Nominees Limited

2nd Defendant/respondent

Greateam Limited

3rd Defendant/respondent

Hu Hung Chiu

Individual Defendant/respondent

Harmutty Limited

1st Defendant/respondent

Haddowe Limited

2nd Defendant/respondent

Casparson Properties Limited

3rd Defendant/respondent

Procedural Posture

Application for Leave to Appeal (civil) / Determination on Application for Leave to Appeal From Court of Appeal Decisions

Legal Issues

1 Whether Order 14 r 1(2)(b) fraud exception applies to proprietary claims arising from alleged breaches of fiduciary duty
2 Whether the present proceedings are suitable for summary judgment under Order 14 given alleged triable issues
3 Whether costs including expenses of receivers appointed under overturned summary judgment are recoverable from the applicant

Ratio Decidendi

Court Disposition

Application for leave to appeal dismissed.

Orders

Order nisi that the applicant pay the costs of the respondents
Any submissions on costs to be lodged and served in writing within 14 days of the date of this Determination; in default the costs order shall stand as an order absolute without further order