A R EVANS CAPITAL PARTNERS LTD v. NOVEL ALTERNATIVE INVESTMENT LTD AND OTHERS

A R EVANS CAPITAL PARTNERS LTD v. NOVEL ALTERNATIVE INVESTMENT LTD AND OTHERS

The Court held Gen2 Partners Inc had established a place of business in Hong Kong and thus was a 'specified corporation'; AR Evans was granted leave under s168BC to intervene to defend the High Court Action and to bring specified derivative claims on behalf of the company (subject to limitation excluding a money had and received claim), Novel and Lau were permitted to oppose the s168BC application, the s168A petition was struck out because most claims pleaded were inappropriate for a s168A petition but AR Evans was given leave to apply to amend limited to matters supporting a buy-out order, and the court declined to impose security for costs as a precondition of leave, leaving that to a...

Citation
A R EVANS CAPITAL PARTNERS LTD v. NOVEL ALTERNATIVE INVESTMENT LTD AND OTHERS
Parties
Plaintiff/petitioner: A R Evans Capital Partners Limited; Defendant/6th Respondent: Gen2 Partners Inc; 1st Respondent/shareholder: Novel Alternative Investment Limited; 2nd Respondent/director/shareholder: Paul Lincoln Heffner; 3rd Respondent/director/shareholder: Lau Wang-Chi Barry; 4th Respondent: Gen2 Partners Limited; 5th Respondent: Gen2 Partners Investment Management Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 June 2012
Case Number
HCMP1991/2011
Procedural Posture
Companies Ordinance Proceedings (section 168 a Petition and Section 168 BC Derivative/intervention Application); Related High Court Action HCA 357/2011 / Judgment on Contested Applications; Directions Given for Further Steps
Outcome
Leave granted to A R Evans to intervene in the High Court Action to defend on behalf of Gen2 Partners Inc and to bring derivative counterclaims limited as specified; s168A petition struck out with liberty to amend limited to buy-out claim; directions given for further pleadings and applications
Legal Topics
Derivative Proceedings, Unfair Prejudice Petition (s168 A), Intervention (s168 Bc), Fiduciary Duties, Shareholders Agreement, Security for Costs, Service and Registration of Foreign Companies
Source Language
EN
Company Law Civil Procedure Equity Derivative Proceedings Unfair Prejudice Petition (s168 A) Intervention (s168 Bc) Fiduciary Duties Shareholders Agreement +2 more

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Parties

A R Evans Capital Partners Limited

Plaintiff/petitioner

Gen2 Partners Inc

Defendant/6th Respondent

Novel Alternative Investment Limited

1st Respondent/shareholder

Paul Lincoln Heffner

2nd Respondent/director/shareholder

Lau Wang-Chi Barry

3rd Respondent/director/shareholder

Gen2 Partners Limited

4th Respondent

Gen2 Partners Investment Management Limited

5th Respondent

Procedural Posture

Companies Ordinance Proceedings (section 168 a Petition and Section 168 BC Derivative/intervention Application); Related High Court Action HCA 357/2011 / Judgment on Contested Applications; Directions Given for Further Steps

Legal Issues

  1. 1 Whether the BVI company Gen2 Partners Inc is a "specified corporation" under the Companies Ordinance
  2. 2 Whether AR Evans should be granted leave under s168BC to intervene and bring derivative claims/defend proceedings on behalf of the company
  3. 3 Whether Novel and Lau should be permitted to intervene to oppose the s168BC application

Ratio Decidendi

The Court held Gen2 Partners Inc had established a place of business in Hong Kong and thus was a 'specified corporation'; AR Evans was granted leave under s168BC to intervene to defend the High Court Action and to bring specified derivative claims on behalf of the company (subject to limitation excluding a money had and received claim), Novel and Lau were permitted to oppose the s168BC application, the s168A petition was struck out because most claims pleaded were inappropriate for a s168A petition but AR Evans was given leave to apply to amend limited to matters supporting a buy-out order, and the court declined to impose security for costs as a precondition of leave, leaving that to a...

Court Disposition

Leave granted to A R Evans to intervene in the High Court Action to defend on behalf of Gen2 Partners Inc and to bring derivative counterclaims limited as specified; s168A petition struck out with liberty to amend limited to buy-out claim; directions given for further pleadings and applications

Orders

  • AR Evans given leave to intervene in HCA 357/2011 and defend on behalf of Gen2 Partners Inc
  • AR Evans given leave to bring derivative claims on behalf of Gen2 Partners Inc as indicated in judgment (excluding claim for money had and received)