BUSINESS FINANCE LTD v. WAI PING SO AND OTHERS

BUSINESS FINANCE LTD v. WAI PING SO AND OTHERS

The Settlement Deed, construed objectively and in light of its wide all‑embracing language and scheme, released the right of the promisor to compel the Related Parties (Yu and Wong) to attend as witnesses; therefore Madam Yeung's application for the subpoenas was an abuse of process and the subpoenas must be set aside, with costs to follow on a nisi basis.

Citation
[2024] HKCFI 2489
Parties
Plaintiff / 1st Defendant (in Counterclaim): Business Finance Limited; 1st Defendant / 2nd Defendant (in Counterclaim): Wai Ping So; 2nd Defendant (by Original Action) and 1st Plaintiff (by Counterclaim) / Guardian Ad Litem and Next Friend: The Official Solicitor (representing Yeung Yum Tai); 2nd Defendant (by Original Action) and 1st Plaintiff (by Counterclaim) Protected Party: Yeung Yum Tai (Madam Yeung); 3rd Defendant (by Original Action) and 2nd Plaintiff (by Counterclaim): Wai Bing Yin; 3rd Defendant by Counterclaim (dismissed): Kung Fan Cheong; Leung Sai Ming; Cheung Kiu Yan Natalia trading as Pang, Kung & Co.; Applicant / Subpoenaed Witness / Accountant (employee of Pkc): Yu Miu Chi; Applicant / Subpoenaed Witness / Legal Clerk (employee of Pkc): Wong Tak Luk Kenneth
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 September 2024
Case Number
HCA2269/2016
Procedural Posture
Civil Action With Counterclaim (commercial/contract Dispute) / Interlocutory Application to Set Aside Subpoenas Prior to Trial (paper Disposal)
Outcome
The summonses to set aside the subpoenas were granted; the two subpoenas issued 8 December 2023 are set aside as an abuse of process.
Legal Topics
Settlement Deed Construction, General Release, Subpoena Ad Testificandum, Abuse of Process, Witness Duty Vs Contractual Release, Costs
Source Language
EN
Civil Procedure Contract Law Evidence Settlement Deed Construction General Release Subpoena Ad Testificandum Abuse of Process Witness Duty Vs Contractual Release +1 more

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Parties

Business Finance Limited

Plaintiff / 1st Defendant (in Counterclaim)

Wai Ping So

1st Defendant / 2nd Defendant (in Counterclaim)

The Official Solicitor (representing Yeung Yum Tai)

2nd Defendant (by Original Action) and 1st Plaintiff (by Counterclaim) / Guardian Ad Litem and Next Friend

Yeung Yum Tai (Madam Yeung)

2nd Defendant (by Original Action) and 1st Plaintiff (by Counterclaim) Protected Party

Wai Bing Yin

3rd Defendant (by Original Action) and 2nd Plaintiff (by Counterclaim)

Kung Fan Cheong; Leung Sai Ming; Cheung Kiu Yan Natalia trading as Pang, Kung & Co.

3rd Defendant by Counterclaim (dismissed)

Yu Miu Chi

Applicant / Subpoenaed Witness / Accountant (employee of Pkc)

Wong Tak Luk Kenneth

Applicant / Subpoenaed Witness / Legal Clerk (employee of Pkc)

Procedural Posture

Civil Action With Counterclaim (commercial/contract Dispute) / Interlocutory Application to Set Aside Subpoenas Prior to Trial (paper Disposal)

Legal Issues

  1. 1 Whether the Settlement Deed released claims and rights to compel Related Parties to give evidence
  2. 2 Whether issuance of subpoenas to employees of PKC was an abuse of process
  3. 3 Proper construction of wide general release clauses

Ratio Decidendi

The Settlement Deed, construed objectively and in light of its wide all‑embracing language and scheme, released the right of the promisor to compel the Related Parties (Yu and Wong) to attend as witnesses; therefore Madam Yeung's application for the subpoenas was an abuse of process and the subpoenas must be set aside, with costs to follow on a nisi basis.

Court Disposition

The summonses to set aside the subpoenas were granted; the two subpoenas issued 8 December 2023 are set aside as an abuse of process.

Orders

  • The two subpoenas ad testificandum issued on 8 December 2023 are set aside (paragraph 1 of each summons).
  • Costs of the two summonses to be paid to Yu and Wong respectively by Yeung, on a nisi basis to be made absolute within 14 days unless any party applies by summons.