WONG KAM SAN AND OTHERS v. ZHAO KAI INVESTMENT LTD AND OTHERS

WONG KAM SAN AND OTHERS v. ZHAO KAI INVESTMENT LTD AND OTHERS

The court dismissed the applications to stay execution because the defendants failed to show a strong prospect of success on appeal—there was no evidential basis for alleging the transfer order enforced an illegal agreement—and failed to show the appeal would be rendered nugatory since Shunfeng could lawfully operate by its board without the 7th defendant. The earlier order declaring a trust in favour of the 1st plaintiff and ordering transfer of 75 shares stands and is to be enforced, with costs awarded against the applicants.

Citation
WONG KAM SAN AND OTHERS v. ZHAO KAI INVESTMENT LTD AND OTHERS
Parties
1st Plaintiff: WONG KAM SAN; 2nd Plaintiff: WONG LAI CHING; 3rd Plaintiff: LIU YONG; 4th Plaintiff: TRENGEI DEVELOPMENT LIMITED; 1st Defendant: ZHAO KAI INVESTMENT LIMITED; 2nd Defendant: YEUNG WING KEUNG; 5th Defendant: 5th Defendant (unnamed); 7th Defendant: 7th Defendant (unnamed); 8th Defendant: HAWKINS DEVELOPMENTS LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
31 August 2006
Case Number
HCA1653/2004
Procedural Posture
Civil Trust and Company / Post Judgment Applications: Enforcement of Judgment and Application to Stay Execution Pending Appeal
Outcome
Application to stay execution pending appeal dismissed; enforcement of earlier judgment ordering transfer of 75 Hawkins shares to 1st plaintiff upheld; costs awarded to plaintiffs in the appeal
Legal Topics
Constructive/express Trust, Transfer of Shares, Stay Pending Appeal, Injunctions, Enforcement of Judgment, Corporate Representation in PRC Entity
Source Language
EN
Trusts Company Law Equity Civil Procedure Injunctive Relief Bankruptcy Constructive/express Trust Transfer of Shares +4 more

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Parties

WONG KAM SAN

1st Plaintiff

WONG LAI CHING

2nd Plaintiff

LIU YONG

3rd Plaintiff

TRENGEI DEVELOPMENT LIMITED

4th Plaintiff

ZHAO KAI INVESTMENT LIMITED

1st Defendant

YEUNG WING KEUNG

2nd Defendant

5th Defendant (unnamed)

5th Defendant

7th Defendant (unnamed)

7th Defendant

HAWKINS DEVELOPMENTS LIMITED

8th Defendant

Procedural Posture

Civil Trust and Company / Post Judgment Applications: Enforcement of Judgment and Application to Stay Execution Pending Appeal

Legal Issues

  1. 1 Whether stay of execution pending appeal should be granted
  2. 2 Whether the 75 shares were held on trust for the 1st plaintiff and lawfulness of the transfer order
  3. 3 Whether the arrangement relied on by defendants was illegal so as to defeat the plaintiffs' claim

Ratio Decidendi

The court dismissed the applications to stay execution because the defendants failed to show a strong prospect of success on appeal—there was no evidential basis for alleging the transfer order enforced an illegal agreement—and failed to show the appeal would be rendered nugatory since Shunfeng could lawfully operate by its board without the 7th defendant. The earlier order declaring a trust in favour of the 1st plaintiff and ordering transfer of 75 shares stands and is to be enforced, with costs awarded against the applicants.

Court Disposition

Application to stay execution pending appeal dismissed; enforcement of earlier judgment ordering transfer of 75 Hawkins shares to 1st plaintiff upheld; costs awarded to plaintiffs in the appeal

Orders

  • Order for immediate transfer of 75 shares in Hawkins to the 1st plaintiff or his nominees (order previously made and enforced)
  • Application by the 1st, 5th and 7th defendants to stay execution pending appeal dismissed