NG CHI SUM AND ANOTHER v. FULL ART INTERNATIONAL LTD AND OTHERS

NG CHI SUM AND ANOTHER v. FULL ART INTERNATIONAL LTD AND OTHERS

The court concluded there was serious and material non-disclosure (notably failure to draw the court's attention to SPA clauses 3.01(aa) and 4.01(a), evidence of substantial advances to TEL by the CAE group, and an email possibly adverse to the claimed settlement agreement) which would have misled the ex parte...

Source-derived case information.

Citation
NG CHI SUM AND ANOTHER v. FULL ART INTERNATIONAL LTD AND OTHERS
Parties
1st Plaintiff: NG CHI SUM; 2nd Plaintiff: YAM MEI LING, MARIA; 1st Defendant: FULL ART INTERNATIONAL LIMITED; 2nd Defendant: CHINA ARCHITECTURAL ENGINEERING INC.; Intended 3rd Defendant: TECHWELL ENGINEERING LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 March 2009
Case Number
HCA138/2009
Procedural Posture
Interlocutory Application for Injunction Arising From Contractual and Company Disputes; Ancillary Costs Application / Costs Decision Following Discharge of Ex Parte Injunction (reasons for Decision on Costs)
Outcome
Ex parte injunction discharged; plaintiff's summons to continue the ex parte order dismissed; costs ordered to defendants to be taxed and paid forthwith with certificate for two counsel.
Legal Topics
Ex Parte Injunction, Non Disclosure (duty of Full and Frank Disclosure), Costs Order, Misrepresentation, Rescission and Repudiation of Contract, Wrongful Dismissal and Removal of Director, Stock Purchase Agreement (spa)
Source Language
en
Civil Commercial Litigation Company Law Contract Law Equity (injunctive Relief) Costs Ex Parte Injunction Non Disclosure (duty of Full and Frank Disclosure) +5 more

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Parties

NG CHI SUM

1st Plaintiff

YAM MEI LING, MARIA

2nd Plaintiff

FULL ART INTERNATIONAL LIMITED

1st Defendant

CHINA ARCHITECTURAL ENGINEERING INC.

2nd Defendant

TECHWELL ENGINEERING LIMITED

Intended 3rd Defendant

Procedural Posture

Interlocutory Application for Injunction Arising From Contractual and Company Disputes; Ancillary Costs Application / Costs Decision Following Discharge of Ex Parte Injunction (reasons for Decision on Costs)

Legal Issues

  1. 1 Whether the applicant for an ex parte injunction failed in the duty of full and frank disclosure to the court
  2. 2 Whether the non-disclosures were material such that the ex parte order should be discharged
  3. 3 Whether such non-disclosures justified an order for immediate payment of costs to the defendants

Ratio Decidendi

The court concluded there was serious and material non-disclosure (notably failure to draw the court's attention to SPA clauses 3.01(aa) and 4.01(a), evidence of substantial advances to TEL by the CAE group, and an email possibly adverse to the claimed settlement agreement) which would have misled the ex parte judge; accordingly the ex parte order was discharged and the applicant penalised by an immediate costs order in favour of the defendants (taxed and paid forthwith with certificate for two counsel).

Court Disposition

Ex parte injunction discharged; plaintiff's summons to continue the ex parte order dismissed; costs ordered to defendants to be taxed and paid forthwith with certificate for two counsel.

Orders

  • Ex parte order dated 23 January 2009 discharged
  • Summons of 29 January 2009 (application to continue ex parte order) dismissed