AKTIESELSKABET DANSK SKIBSFINANSIERING v. WHEELOCK MARDEN & CO. LTD. and Others

AKTIESELSKABET DANSK SKIBSFINANSIERING v. WHEELOCK MARDEN & CO. LTD. and Others

The court refused to strike out the conspiracy causes of action: the pleading identified parties and an approximate date and contained sufficient overt acts and allegations of intent to put defendants on notice; misrepresentation and conspiracy issues raised factual disputes (agency, knowledge, participation) that must be resolved at trial and therefore should not be struck out on pleadings alone; however, the pleaded allegations that defendants acted for unspecified 'own purposes' under s.275 were speculative and lacked necessary particularity and were struck out (paragraph 28 and the part of paragraph 30 relying on those matters); discovery applications for the listed documents were...

Citation
AKTIESELSKABET DANSK SKIBSFINANSIERING v. WHEELOCK MARDEN & CO. LTD. and Others
Parties
Plaintiff (body Corporate): AKTIESELSKABET DANSK SKIBSFINANSIERING; 1st Defendant (general Manager and Secretary of Wmi): WHEELOCK MARDEN & COMPANY LIMITED; 2nd Defendant (director): JOHN LOUIS MARDEN; 3rd Defendant (director): WILLIAM JOHN LEES; 4th Defendant (director): LEE PEI-CHUNG; 5th Defendant (director; Negotiated Loans): ROBERT JOHN FRANCIS BROTHERS; 6th Defendant (director): LEUNG HON WAH; 7th Defendant (director of 1st Defendant Only): PATRICK POON; 8th Defendant (deceased): DAVID ANDREW HUSSEY; 9th Defendant (director): CHARLES BRIAN MURRAY LLOYD; 10th Defendant (director): YUEN CHU-WING; 11th Defendant (claim Dismissed): YING MING TEH MICHAEL; 12th Defendant (director): ANTHONY LOUIS MARDEN
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 October 1993
Case Number
HCMP2625/1988
Procedural Posture
Companies Ordinance (1975 & 1984) Civil Claims for Fraudulent Trading, Misrepresentation, Conspiracy / High Court Miscellaneous Proceedings — Pre Trial Applications (strike Out, Discovery, Further and Better Particulars)
Outcome
Applications partially allowed: strike out application largely dismissed but specific allegations of ulterior personal purposes under s.275 struck out; discovery/production applications dismissed; orders for further and better particulars made.
Legal Topics
Fraudulent Trading, Fraudulent Misrepresentation, Negligent Misrepresentation, Conspiracy, Discovery, Particulars, Section 275 Companies Ordinance
Source Language
EN
Company Law Fraud Tort Civil Procedure Insolvency Law Fraudulent Trading Fraudulent Misrepresentation Negligent Misrepresentation +4 more

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Parties

AKTIESELSKABET DANSK SKIBSFINANSIERING

Plaintiff (body Corporate)

WHEELOCK MARDEN & COMPANY LIMITED

1st Defendant (general Manager and Secretary of Wmi)

JOHN LOUIS MARDEN

2nd Defendant (director)

WILLIAM JOHN LEES

3rd Defendant (director)

LEE PEI-CHUNG

4th Defendant (director)

ROBERT JOHN FRANCIS BROTHERS

5th Defendant (director; Negotiated Loans)

LEUNG HON WAH

6th Defendant (director)

PATRICK POON

7th Defendant (director of 1st Defendant Only)

DAVID ANDREW HUSSEY

8th Defendant (deceased)

CHARLES BRIAN MURRAY LLOYD

9th Defendant (director)

YUEN CHU-WING

10th Defendant (director)

YING MING TEH MICHAEL

11th Defendant (claim Dismissed)

ANTHONY LOUIS MARDEN

12th Defendant (director)

Procedural Posture

Companies Ordinance (1975 & 1984) Civil Claims for Fraudulent Trading, Misrepresentation, Conspiracy / High Court Miscellaneous Proceedings — Pre Trial Applications (strike Out, Discovery, Further and Better Particulars)

Legal Issues

  1. 1 Sufficiency of pleadings for conspiracy (agreement/combination, overt acts, intent to injure)
  2. 2 Attribution/agency for alleged misrepresentations made by a negotiating director (D5) to other individual directors
  3. 3 Adequacy of particulars for a claim of fraudulent trading under s.275 (allegation of ulterior personal purposes)

Ratio Decidendi

The court refused to strike out the conspiracy causes of action: the pleading identified parties and an approximate date and contained sufficient overt acts and allegations of intent to put defendants on notice; misrepresentation and conspiracy issues raised factual disputes (agency, knowledge, participation) that must be resolved at trial and therefore should not be struck out on pleadings alone; however, the pleaded allegations that defendants acted for unspecified 'own purposes' under s.275 were speculative and lacked necessary particularity and were struck out (paragraph 28 and the part of paragraph 30 relying on those matters); discovery applications for the listed documents were...

Court Disposition

Applications partially allowed: strike out application largely dismissed but specific allegations of ulterior personal purposes under s.275 struck out; discovery/production applications dismissed; orders for further and better particulars made.

Orders

  • Paragraph 28 of the consolidated statement of claim struck out
  • So much of paragraph 30 as relates to allegations of defendants' 'own purposes' under s.275 struck out