LEUNG CHI TUNG v. AU YEUNG FAN AND OTHERS

LEUNG CHI TUNG v. AU YEUNG FAN AND OTHERS

The buyout order created present binding obligations at the time it was made such that the purchaser had an obligation to pay a specified sum on the completion date; that obligation was not contingent on the seller's performance and, upon failure to complete, constituted a judgment for payment of a specified sum...

Source-derived case information.

Citation
LEUNG CHI TUNG v. AU YEUNG FAN AND OTHERS
Parties
Petitioner: Leung Chi Tung; 1st Respondent: Au Yeung Fan; 2nd Respondent: Wong Ka Man; 3rd Respondent: Fansway International Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 May 2013
Case Number
HCCW504/2005
Procedural Posture
Companies (winding Up) No 504 of 2005 / Appeal From Master's Decision (hearing and Reasons for Decision)
Outcome
Appeal dismissed with costs; Master's order for examination under Order 49B upheld.
Legal Topics
Order 49 B Oral Examination, Judgment Debt, Buyout Order Enforcement, Specific Performance, Order 48 Vs Order 49 B
Source Language
en
Companies Law Civil Procedure Enforcement Equity (specific Performance) Order 49 B Oral Examination Judgment Debt Buyout Order Enforcement Specific Performance +1 more

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Parties

Leung Chi Tung

Petitioner

Au Yeung Fan

1st Respondent

Wong Ka Man

2nd Respondent

Fansway International Limited

3rd Respondent

Procedural Posture

Companies (winding Up) No 504 of 2005 / Appeal From Master's Decision (hearing and Reasons for Decision)

Legal Issues

  1. 1 Whether a buyout order which has not been complied with constitutes a judgment debt for the purposes of Order 49B
  2. 2 Whether a judgment debt must exist at the time the judgment is made or can arise by subsequent breach
  3. 3 Whether Order 49B was the appropriate procedural vehicle compared with Order 48

Ratio Decidendi

The buyout order created present binding obligations at the time it was made such that the purchaser had an obligation to pay a specified sum on the completion date; that obligation was not contingent on the seller's performance and, upon failure to complete, constituted a judgment for payment of a specified sum unsatisfied for the purposes of Order 49B, so the examination order was properly made.

Court Disposition

Appeal dismissed with costs; Master's order for examination under Order 49B upheld.

Orders

  • Appeal dismissed with costs
  • Order of Master A. Ho dated 16 August 2012 for examination under Order 49B affirmed