章晶历 v. 吴联模 AND ANOTHER

章晶历 v. 吴联模 AND ANOTHER

On the evidence, including W's contemporaneous affirmations, FB's 2017 annual report, bank records and the unreliable, inconsistent and uncorroborated evidence of W and Yang, the Court found W retained the beneficial interest in the KD shares and the FB shares; the Loan, Repayment Agreement and transfer to Yang were not genuine but contrived to defeat enforcement; accordingly the charging order nisi was made absolute in favour of the Applicant.

Citation
[2020] HKCFI 359
Parties
Applicant: Applicant; First Respondent: W; Second Respondent: KAI DE INTERNATIONAL HOLDING LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 March 2020
Case Number
HCCT48/2017
Procedural Posture
Enforcement of Arbitration Award / Charging Order / Trial on Beneficial Ownership of Shares Following Charging Order Nisi
Outcome
Charging order nisi in respect of the FB shares made absolute; beneficial interest found to vest in W
Legal Topics
Charging Order, Beneficial Ownership, Resulting Trust, Sham Transaction, Corporate Personality, Burden of Proof
Source Language
EN
Company Law Equity and Trusts Civil Procedure Enforcement of Arbitral Awards Remedies Charging Order Beneficial Ownership Resulting Trust +3 more

Case Brief

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Parties

Applicant

Applicant

W

First Respondent

KAI DE INTERNATIONAL HOLDING LIMITED

Second Respondent

Procedural Posture

Enforcement of Arbitration Award / Charging Order / Trial on Beneficial Ownership of Shares Following Charging Order Nisi

Legal Issues

  1. 1 Whether the beneficial interest in 612,340,000 shares in Future Bright Mining Holdings Ltd registered in KD vested in W or in KD
  2. 2 Whether the transfer of KD to Yang and the Loan/Repayment Agreements were genuine or a sham to defeat the charging order
  3. 3 Whether Yang was a bona fide purchaser for value without notice

Ratio Decidendi

On the evidence, including W's contemporaneous affirmations, FB's 2017 annual report, bank records and the unreliable, inconsistent and uncorroborated evidence of W and Yang, the Court found W retained the beneficial interest in the KD shares and the FB shares; the Loan, Repayment Agreement and transfer to Yang were not genuine but contrived to defeat enforcement; accordingly the charging order nisi was made absolute in favour of the Applicant.

Court Disposition

Charging order nisi in respect of the FB shares made absolute; beneficial interest found to vest in W

Orders

  • Charging order nisi in respect of 612,340,000 FB shares made absolute
  • Costs of the charging order applications and costs of the trial of beneficial interests awarded to the Applicant