CONCORDE CONSTRUCTION COMPANY LIMITED v. COLGAN COMPANY LIMITED AND ANOTHER

CONCORDE CONSTRUCTION COMPANY LIMITED v. COLGAN COMPANY LIMITED AND ANOTHER

The applicant failed to prove beyond reasonable doubt that either director wilfully refused or neglected to obey the mandatory injunction; Colgan's proven insolvency and lack of means meant there was no contempt and the veil should not be lifted to compel the parent or directors to provide funds.

Citation
CONCORDE CONSTRUCTION COMPANY LIMITED v. COLGAN COMPANY LIMITED AND ANOTHER
Parties
Applicant/plaintiff: Concorde Construction Company Limited; Respondent/defendant: Colgan Company Limited; Respondent/director: James Tien Pei Chun; Respondent/director: Michael Tien Puk Sun; Third Party: Hsia & Associates (a firm)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
31 July 1984
Case Number
HCCL36/1984
Procedural Posture
Commercial List Civil Action; Application for Committal for Contempt Under Order 45 Rule 5 / Interlocutory Committal Hearing Following Mandatory Injunction (application Heard 13,16,17 July 1984; Judgment 31 July 1984)
Outcome
Contempt proceedings dismissed against James Tien and Michael Tien; leave to issue a writ of sequestration against Colgan refused
Legal Topics
Committal for Contempt, Onus and Standard of Proof (beyond Reasonable Doubt), Lifting the Corporate Veil, Retention Monies Under Building Contract, Mandatory Injunction to Create Trust Fund, Directors' Duties and Powers, Limited Liability
Source Language
EN
Civil Procedure Contempt of Court Contract Law Trusts Company Law Injunctions Committal for Contempt Onus and Standard of Proof (beyond Reasonable Doubt) +5 more

Case Brief

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Parties

Concorde Construction Company Limited

Applicant/plaintiff

Colgan Company Limited

Respondent/defendant

James Tien Pei Chun

Respondent/director

Michael Tien Puk Sun

Respondent/director

Hsia & Associates (a firm)

Third Party

Procedural Posture

Commercial List Civil Action; Application for Committal for Contempt Under Order 45 Rule 5 / Interlocutory Committal Hearing Following Mandatory Injunction (application Heard 13,16,17 July 1984; Judgment 31 July 1984)

Legal Issues

  1. 1 Whether directors of Colgan could be guilty of contempt for failing to set up a trust fund ordered by the court
  2. 2 What is the onus and standard of proof in committal proceedings for contempt (civil contempts)
  3. 3 Whether wilful refusal or neglect to obey the court order was established

Ratio Decidendi

The applicant failed to prove beyond reasonable doubt that either director wilfully refused or neglected to obey the mandatory injunction; Colgan's proven insolvency and lack of means meant there was no contempt and the veil should not be lifted to compel the parent or directors to provide funds.

Court Disposition

Contempt proceedings dismissed against James Tien and Michael Tien; leave to issue a writ of sequestration against Colgan refused

Orders

  • Contempt proceedings dismissed against both named directors, James Tien and Michael Tien
  • Leave to issue a writ of sequestration against Colgan Company Limited refused