IP PUI LAM ARTHUR AND ANOTHER v. HO YUK WAH DAVID (a bankrupt) AND OTHERS

IP PUI LAM ARTHUR AND ANOTHER v. HO YUK WAH DAVID (a bankrupt) AND OTHERS

The ex parte order was discharged because material non-disclosure (failure to disclose the discontinued earlier proceedings and not producing the Opposing Affirmation) and self-induced delay undermined the integrity of the ex parte application; however, on the merits there remained a serious issue to be tried as to...

Source-derived case information.

Citation
[2018] HKCFI 455
Parties
Plaintiff (trustee in Bankruptcy): Ip Pui Lam Arthur; Plaintiff (trustee in Bankruptcy): Ip Pui Sum; 1st Defendant (bankrupt): Ho Yuk Wah David; 2nd Defendant: Asia-Pac Infrastructure Development Limited (HK); 3rd Defendant: Grassmere Services Limited; 4th Defendant: Dan Form International Limited; 5th Defendant (escrow Agent; Law Firm): Stephenson Harwood
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 April 2018
Case Number
HCA2587/2017
Procedural Posture
Interlocutory Injunction (proprietary Injunction Over Escrow Funds) / Hearing on Discharge and Continuation of Ex Parte Injunction (interim Application)
Outcome
Discharged the original Ex-parte Order; ordered a re-grant of the proprietary injunction with modifications; made costs orders nisi in favour of Grassmere as to the Discharge Summons and costs in the cause as to the Continuation Summons.
Legal Topics
Ex Parte Injunction, Material Non Disclosure, Proprietary Claim, Beneficial Ownership of Shares, Escrow Arrangements, Mandatory Share Redemption (bvi), Appraisal Under BVI Law, Service Out, Undertaking as to Damages
Source Language
en
Equity Injunctions Trusts Company Law Bankruptcy Law Civil Procedure Ex Parte Injunction Material Non Disclosure +7 more

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Parties

Ip Pui Lam Arthur

Plaintiff (trustee in Bankruptcy)

Ip Pui Sum

Plaintiff (trustee in Bankruptcy)

Ho Yuk Wah David

1st Defendant (bankrupt)

Asia-Pac Infrastructure Development Limited (HK)

2nd Defendant

Grassmere Services Limited

3rd Defendant

Dan Form International Limited

4th Defendant

Stephenson Harwood

5th Defendant (escrow Agent; Law Firm)

Procedural Posture

Interlocutory Injunction (proprietary Injunction Over Escrow Funds) / Hearing on Discharge and Continuation of Ex Parte Injunction (interim Application)

Legal Issues

  1. 1 Whether the ex parte injunction should be discharged for material non-disclosure and self-induced urgency
  2. 2 Whether there is a serious issue to be tried on beneficial ownership of the DFIL shares registered in the name of Grassmere
  3. 3 Whether the Trustees can claim a proprietary remedy and trace the sale proceeds into the escrow Sum/Assessed Amount

Ratio Decidendi

The ex parte order was discharged because material non-disclosure (failure to disclose the discontinued earlier proceedings and not producing the Opposing Affirmation) and self-induced delay undermined the integrity of the ex parte application; however, on the merits there remained a serious issue to be tried as to beneficial ownership of the DFIL shares (notably the Joint Announcement attached to the escrow deed) and, on balance of convenience and the risk of dissipation, a proprietary injunction should be re-granted with modifications to preserve the Assessed Amount, with specified costs orders.

Court Disposition

Discharged the original Ex-parte Order; ordered a re-grant of the proprietary injunction with modifications; made costs orders nisi in favour of Grassmere as to the Discharge Summons and costs in the cause as to the Continuation Summons.

Orders

  • Ex-parte Order discharged forthwith (allowing Discharge Summons)
  • Order nisi that costs of and occasioned by the Discharge Summons be paid by the Trustees to Grassmere, to be taxed if not agreed, certificate for two counsel