ASIA-PAC INFRASTRUCTURE DEVELOPMENT LTD AND OTHERS v. SHEARMAN & STERLING (a firm) AND OTHERS

ASIA-PAC INFRASTRUCTURE DEVELOPMENT LTD AND OTHERS v. SHEARMAN & STERLING (a firm) AND OTHERS

The court exercised its discretion to refuse the proposed reinstatement of P2–P4 claims because allowing the amendment would constitute an abuse of process per Henderson v Henderson, would undermine the finality of the preliminary-issue judgment which found the Assignments champertous and engineered to evade...

Source-derived case information.

Citation
[2021] HKCFI 3381
Parties
1st Plaintiff: ASIA-PAC INFRASTRUCTURE DEVELOPMENT LIMITED (in creditor’s voluntary liquidation) (on behalf of itself and as assignee of Asia-Pac Infrastructure Finance Limited; Asia-Pac Group Investments Limited; & Greater Beijing Region Expressways Limited); 2nd Plaintiff: ASIA-PAC INFRASTRUCTURE FINANCE LIMITED; 3rd Plaintiff: ASIA-PAC GROUP INVESTMENTS LIMITED; 4th Plaintiff: GREATER BEIJING REGION EXPRESSWAYS LIMITED on behalf of itself and as assignee of Greater Beijing First Expressways Limited (in Liquidation); 1st Defendant: SHEARMAN & STERLING (a firm); 2nd Defendant: SHEARMAN & STERLING LLP (a firm, formerly known as SHEARMAN & STERLING); 3rd Defendant: ANTONIA E. STOLPER; 4th Defendant: DOUGLAS P. BARTNER; 5th Defendant: ANDREW V. TENZER; 6th Defendant: HSIAO-CHIUNG LI; 7th Defendant: MATTHEW D. BERSANI; 8th Defendant: EDWARD L. TURNER III; 9th Defendant: HERBERT SMITH (a firm)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
9 November 2021
Case Number
HCA806/2006
Procedural Posture
Civil Amendment Application After Determination of Preliminary Issue / Post Judgment Amendment Application Following Preliminary Issue Trial
Outcome
Application partly allowed and partly disallowed; reinstatement of P2–P4 claims disallowed as abuse of process; certain pleadings permitted to be amended; some substantive amendments and P4 recovery disallowed; costs reserved for hearing.
Legal Topics
Amendment of Pleadings, Henderson V Henderson Abuse of Process, Champerty and Void Assignments, Assignment of Causes of Action, Recoverability of Loss (repayment of Loan)
Source Language
en
Civil Procedure Litigation Funding and Champerty Contract Law Security for Costs Pleadings Amendment of Pleadings Henderson V Henderson Abuse of Process Champerty and Void Assignments +2 more

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Parties

ASIA-PAC INFRASTRUCTURE DEVELOPMENT LIMITED (in creditor’s voluntary liquidation) (on behalf of itself and as assignee of Asia-Pac Infrastructure Finance Limited; Asia-Pac Group Investments Limited; & Greater Beijing Region Expressways Limited)

1st Plaintiff

ASIA-PAC INFRASTRUCTURE FINANCE LIMITED

2nd Plaintiff

ASIA-PAC GROUP INVESTMENTS LIMITED

3rd Plaintiff

GREATER BEIJING REGION EXPRESSWAYS LIMITED on behalf of itself and as assignee of Greater Beijing First Expressways Limited (in Liquidation)

4th Plaintiff

SHEARMAN & STERLING (a firm)

1st Defendant

SHEARMAN & STERLING LLP (a firm, formerly known as SHEARMAN & STERLING)

2nd Defendant

ANTONIA E. STOLPER

3rd Defendant

DOUGLAS P. BARTNER

4th Defendant

ANDREW V. TENZER

5th Defendant

HSIAO-CHIUNG LI

6th Defendant

MATTHEW D. BERSANI

7th Defendant

EDWARD L. TURNER III

8th Defendant

HERBERT SMITH (a firm)

9th Defendant

Procedural Posture

Civil Amendment Application After Determination of Preliminary Issue / Post Judgment Amendment Application Following Preliminary Issue Trial

Legal Issues

  1. 1 Whether proposed reinstatement of P2–P4 claims by amendment is an abuse of process
  2. 2 Whether proposed amendments should be allowed post-judgment
  3. 3 Whether the Deeds of Assignment were engineered to evade security for costs and thus champertous

Ratio Decidendi

The court exercised its discretion to refuse the proposed reinstatement of P2–P4 claims because allowing the amendment would constitute an abuse of process per Henderson v Henderson, would undermine the finality of the preliminary-issue judgment which found the Assignments champertous and engineered to evade security for costs, and the amendment application should have been made before the trial; limited factual and documentary amendments relevant to P1 were allowed, while claims and amendments that sought to resurrect assigned causes or recover repayment of USD14 million were disallowed.

Court Disposition

Application partly allowed and partly disallowed; reinstatement of P2–P4 claims disallowed as abuse of process; certain pleadings permitted to be amended; some substantive amendments and P4 recovery disallowed; costs reserved for hearing.

Orders

  • Reinstatement of claims of the 2nd to 4th Plaintiffs disallowed
  • Proposed amendments to paragraphs 40A, 40B and the Prayer of the RASOC disallowed