MAXFORTUNE TRADING LTD v. FUNG TIN YAU

HCCW 170/2016, HCCW 171/2016, HCCW 172/2016, HCA 2225/2016 HCA 2078/2017, HCA 2998/2017, HCA 2999/2017, HCA 3000/2017, HCA 133/2018, HCA 136/2018, HCA 1291/2018 (Consolidated) [2020] HKCFI 379 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE COMPANIES (WINDINGUP) PROCEEDINGS NO 170 OF 2016 _____________ IN THE MATTER OF Great Anchor International Limited and IN THE MATTER OF Section 327(3)(c) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap 32) _____________ BETWEEN FUNG TIN YAU (馮天佑) Petitioner and FUNG TIN SHING (馮天承) 1st Respondent FUNG WING SEE (馮穎思) 2nd Respondent GREAT ANCHOR INTERNATIONAL LIMITED 3rd Respondent ____________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE COMPANIES (WINDINGUP) PROCEEDINGS NO 171 OF 2016 _____________ IN THE MATTER OF Maxfortune Trading Limited and IN THE MATTER OF Section 327(3)(c) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap 32) _____________ BETWEEN FUNG TIN YAU (馮天佑) Petitioner and FUNG TIN SHING (馮天承) 1st Respondent FUNG WING SEE (馮穎思) 2nd Respondent MAXFORTUNE TRADING LIMITED 3rd Respondent ______________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE COMPANIES (WINDINGUP) PROCEEDINGS NO 172 OF 2016 _____________ IN THE MATTER OF Premium Management Limited and IN THE MATTER OF Section 327(3)(c) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap 32) _____________ BETWEEN FUNG TIN YAU (馮天佑) Petitioner and FUNG TIN SHING (馮天承) 1st Respondent FUNG WING SEE (馮穎思) 2nd Respondent PREMIUM MANAGEMENT LIMITED 3rd Respondent ______________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2225 OF 2016 _____________ BETWEEN LAI NG NUI (賴五女) 1st Plaintiff FUNG WING YAN (馮穎欣) 2nd Plaintiff FUNG WING YIN (馮穎賢) 3rd Plaintiff and FUNG TIN YAU (馮天佑) Defendant (BY ORIGINAL ACTION) AND BETWEEN FUNG TIN YAU (馮天佑) Plaintiff and LAI NG NUI (賴五女) 1st Defendant FUNG WING YAN (馮穎欣) 2nd Defendant FUNG WING YIN (馮穎賢) 3rd Defendant FUNG TIN SHING (馮天承) 4th Defendant FUNG WING SEE (馮穎思) 5th Defendant (BY COUNTERCLAIM) ______________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2078 OF 2017 _____________ BETWEEN LAI NG NUI (賴五女) Plaintiff and FUNG TIN YAU (馮天佑) Defendant (BY ORIGINAL ACTION) AND BETWEEN FUNG TIN YAU (馮天佑) Plaintiff and LAI NG NUI (賴五女) 1st Defendant FUNG WING SEE (馮穎思) 2nd Defendant (BY COUNTERCLAIM) ______________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2998 OF 2017 _____________ BETWEEN MAXFORTUNE TRADING LIMITED Plaintiff and FUNG TIN YAU (馮天佑) Defendant ______________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2999 OF 2017 _____________ BETWEEN WYSE INVESTMENTS LIMITED Plaintiff and FUNG TIN YAU (馮天佑) Defendant ______________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 3000 OF 2017 _____________ BETWEEN PREMIUM MANAGEMENT LIMITED Plaintiff and FUNG TIN YAU (馮天佑) Defendant ______________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 133 OF 2018 _____________ BETWEEN FUNG TIN YAU, SUING ON BEHALF OF HIMSELF AS Plaintiff A SHAREHOLDER OF MAXFORTUNE TRADING LIMITED and LAI NG NUI (賴五女) 1st Defendant MAXFORTUNE TRADING LIMITED 2nd Defendant FUNG TIN SHING (馮天承) 3rd Defendant FUNG WING SEE (馮穎思) 4th Defendant ______________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 136 OF 2018 _____________ BETWEEN FUNG TIN YAU, SUING ON BEHALF OF HIMSELF Plaintiff AND MAXFORTUNE TRADING LIMITED AS A SHAREHOLDER OF SAMDOR COMPANY LIMITED and LAI NG NUI (賴五女) 1st Defendant MAXFORTUNE TRADING LIMITED 2nd Defendant SAMDOR COMPANY LIMITED 3rd Defendant FUNG TIN SHING (馮天承) 4th Defendant FUNG WING SEE (馮穎思) 5th Defendant ______________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1291 OF 2018 _____________ BETWEEN WYSE INVESTMENT LIMITED Plaintiff and FUNG TIN YAU (馮天佑) Defendant ______________ (Consolidated by the Order of the Honourable Mr Justice Harris dated 5 December 2018) Before: Hon K Yeung J in Chambers Date of Hearing: 19 December 2019 Date of Decision: 4 March 2020 DECISION Introduction On 23 January 2020, I handed down my Decisions on the 3 Sets of Appeals (the “Appeal Decisions” ). This Decision will have to be read in conjunction with the Appeal Decisions. Except otherwise stated, the terms I use here are also the same as those used and defined in the Appeal Decisions. On 19 December 2019, the parties came before me in respect of 2 further matters: Summons (the “Direction Summons”) taken out by Madam Lai, Andy, Jenny, Wing Yan, Wing Yin, Great Anchor, Maxfortune, Premium, Wyse and Samdor (collectively called in this Decision the “Applying Respondents”) against TY (called in this Decision the “Petitioner”) for certain directions consequential upon the consolidation of the 11 Actions ordered by Harris J. The main dispute between the parties goes to whether a set of consolidated pleadings should be ordered; and Another Summons dated 26 September 2019 (the “Costs Summons”) taken out by Andy and Jenny as the 1st and 2nd Respondents in HCCW 170172 and Great Anchor, Maxfortune and Premium as the 3rd Respondent in HCCW 170172 respectively for the payment out of certain Sanction Payment, with costs of the application to them. The Direction Summons I have in Yong Li Investments Ltd v Lee Sing Leung Robin [2018] HKCFI 1711 discussed the relevant factors and considerations in deciding whether upon consolidation a set of consolidated pleadings should be ordered. In short, the wide discretion of the Court is engaged. In deciding how that discretion is to be exercised, all facts and circumstances will have to be considered. The underlying objectives set out in Order 1A, rule 1 should be taken into account, as should the Court’s duties to manage cases as set out in Order 1A, rule 4. Of relevance is whether the ordering of consolidated pleadings will be conducive towards the saving of time and costs. I have in the Appeal Decisions set out in detail the facts relevant to the 11 Actions. I have also set out therein parties’ main pleaded cases. I will adopt but will not repeat them. The 11 Actions share the same factual background. They hence also share some potentially complicated factual disputes, eg the contents of Fung Senior’s Wishes and their implementation, Fung Senior’s Trust Arrangement, the Consensus vs Withdrawal / Wyse Agreements dichotomy, and the reasons for the withdrawal of funds from the corporate parties (to name a few). The 11 Actions also share some common legal issues, the law relating to the assumption or importing of fiduciary duties being one. At the moment, there are before the Court multiple sets of pleadings. Their contents partially overlap. Crossreferencing them to ascertain what parties have pleaded what in which proceedings can be a bit of a pain. I have had a taste of that when drafting the Appeal Decisions. Important in my mind is that at this stage, pleadings have not been closed in respect of all the 11 sets of pleadings. In particular, upon my dismissal of the 3 Sets of Appeals, further pleadings will likely be served by some of the Applying Respondents (in particular, Reply and Defence to Counterclaim in HCA 2078, Defences in HCA 133 & 136, and Replies in HCA 29983000). If a consolidated set of pleadings is to be ordered, this is going to be the opportune time. In my view, having a set of consolidated pleadings in the circumstances of these proceedings will help to define and crystalize the issues, weed out duplications in the existing pleadings, assist parties to focus upon the main issues, be useful for the preparation of witness statements, and ultimately be important when it comes to the presentation and adjudication of the consolidated action in court. Potentially, a lot of time and costs will be saved. Judicial resources will also be better employed. Mr Dawes on behalf of the Petitioner expresses in his written submissions “grave reservations” on the ordering of consolidated pleadings: He submits firstly that it will create an unmanageable task for the pleader. I do not accept that. I am quite certain that the parties and their pleaders can comb through the multiple sets of pleadings now before the court, weed out duplications, and plead the relevant facts as required by the Rules so as to properly frame the issues. The bottom line is this, if it were a difficult task for the parties to come up with a set of consolidated pleadings, it would down the road be an even more difficult task for the trial judge to sift through the scattered pleadings when trying the case. I repeat what I have said above, that this is the opportune time to tidy up the pleadings; Next , Mr Dawes points to the different capacities in which the Petitioner is suing and being sued and submits that having a consolidated pleadings would be confusing. I do not agree. The perceived confusion may just be a matter of nomenclature, and can in my view be addressed without much difficulties; Next , Mr Dawes submits that it is unlikely that having consolidated pleadings would save any time and costs. He submits that the better course would be for the Court to consider ordering the filing of agreed set of facts and agreed issues, as contemplated by AuYeung J in Mass Ocean International Ltd v Trinity Holdings (Hong Kong) Ltd & Ors [2019] HKCFI 2323 §§27-29; Given the matter which I have discussed in §§5 to 9 above, I do not agree that the ordering of consolidated pleadings will not be conducive towards the saving of costs and time. Further, having consolidated pleadings is not inconsistent with any future ordering of the filing of agreed facts and issues, which this Court may still do down the road. In the circumstances, I order the filing of a consolidated set of pleadings and give the directions sought in §§1(a) to (d) of the Direction Summons. For the avoidance of doubt, I state also that: this Order for the filing of consolidated pleadings relieves the Appellants in the 3 Sets of Appeals from filing, as a result of my Appeal Decisions, any pleadings which they are entitled under the Rules to file and which they otherwise would choose to file. Any such pleadings which they otherwise would file can be incorporated into their Consolidated Defence and Counterclaim envisaged by §1(b) of the Direction Summons; and As I have observed in Yong Li Investments, the ordering of consolidated pleadings does not give the parties carte blanche to change their cases or amend their pleadings in ways which they otherwise would need leave for. The same apply here, save the contents of any pleadings which any of the Appellants in the 3 Sets of Appeal could and would file as a result of the Appeal Decisions but for this Order (and see the clarifications I have made in §11(a) immediately above). The balance of the Direction Summons is not controversial. I accordingly make an Order in terms of the Direction Summons. I make a costs order nisi that the Petitioner shall bear the costs of the Direction Summons to be taxed if not agreed. Any party who seeks summary assessment or any variation should file their submissions within 21 days from the date hereof, submissions in opposition within 14 days of receipt, and in reply another 14 days upon receipt. The Costs Summons It was, and should have remained to be, a very trivial matter involving the payment of requested costs in the sum of HK$1,040 for a consent summons so that certain sums which Andy and Jenny as the Respondents in HCCW 170172 had paid into court could be paid out to them. At §15 of his submissions, Mr Dawes indicates that the Petitioner is, acting in a pragmatic spirit and to avoid further unnecessary argument, willing to consent to an order in terms of §1 of the Costs Summons. Having considered the facts placed before me by Mr Tang, I agree that the Costs Summons was necessitated by the stance that the Petitioner had adopted. I therefore make an order in terms of §1 of the Costs Summons, and order further that the costs of the application be borne by him (§2 of the Costs Summons). (Keith Yeung) Judge of the Court of First Instance High Court Mr Victor Dawes SC leading Mr Martin Ho, instructed by Tony Kan & Co, for: (1) the Petitioner in HCCW 170/2016, HCCW 171/2016 and HCCW 172/2016; (2) the Defendant (by original action) and the Plaintiff (by counterclaim) in HCA 2225/2016 and HCA 2078/2017; (3) the Defendant in HCA 1291/2018, HCA 2998/2017, HCA 2999/2017 and HCA 3000/2017; and (4) the Plaintiff in HCA 133/2018 and HCA 136/2018 Mr Ronald Tang and Ms Carmen Kei, instructed by King & Wood Mallesons, for: (1) the 1st to 3rd Respondents in HCCW 170/2016, HCCW 171/2016 and HCCW 172/2016; (2) the Plaintiffs (by original action) and the Defendants (by counterclaim) in HCA 2225/2016; (3) the Plaintiff (by original action) and the Defendants (by counterclaim) in HCA 2078/2017; (4) the Plaintiff in HCA 1291/2018, HCA 2998/2017, HCA 2999/2017 and HCA 3000/2017; (5) the 1st, 3rd and 4th Defendants in HCA 133/2018; and (6) the 1st, 4th and 5th Defendants in HCA 136/2018 The 2nd Defendant in HCA 133/2018 and HCA 136/2018 was not represented and did not appear The 3rd Defendant in HCA 136/2018 was not represented and did not appear