HILL COSMOS INTERNATIONAL LTD v. OCEAN FISHERY HOLDING NV AND ANOTHER

HILL COSMOS INTERNATIONAL LTD v. OCEAN FISHERY HOLDING NV AND ANOTHER

The re-amended Statement of Claim did not plead deliberate dishonesty and therefore did not fall within the fraud exclusion of Order 14; the MOU was non-binding so its arbitration clause did not compel a stay as against the Plaintiff; the assignment by deed and notice vested the right to sue in the Plaintiff under...

Source-derived case information.

Citation
HILL COSMOS INTERNATIONAL LTD v. OCEAN FISHERY HOLDING NV AND ANOTHER
Parties
Plaintiff: Hill Cosmos International Limited; 1st Defendant: Ocean Fishery Holding NV; 2nd Defendant: Ocean Fishery Cook Islands 1 Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 July 2009
Case Number
HCA2276/2008
Procedural Posture
Civil Action for Recovery/restitution Arising From MOU and Letters of Credit / Interim Application for Summary Judgment Under Order 14 (application and Preliminary Objections Heard)
Outcome
Summary judgment application under Order 14 granted in favour of Plaintiff; application to stay proceedings for arbitration dismissed; re-amendment allowed; defendant's preliminary objection on fraud failed
Legal Topics
Summary Judgment, Order 14, Negligent Misrepresentation, Fraud Allegation, Money Had and Received, Restitution, Assignment of Chose in Action, Stay for Arbitration
Source Language
en
Civil Procedure Contract Restitution/unjust Enrichment Arbitration Property (assignment) Fraud/representations Summary Judgment Order 14 +6 more

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Parties

Hill Cosmos International Limited

Plaintiff

Ocean Fishery Holding NV

1st Defendant

Ocean Fishery Cook Islands 1 Limited

2nd Defendant

Procedural Posture

Civil Action for Recovery/restitution Arising From MOU and Letters of Credit / Interim Application for Summary Judgment Under Order 14 (application and Preliminary Objections Heard)

Legal Issues

  1. 1 Whether Order 14 is excluded by a pleaded allegation of fraud when claim re-amended to negligent misrepresentation
  2. 2 Whether allegations in the re-amended statement of claim amount to fraud (deliberate dishonesty)
  3. 3 Whether the proceedings should be stayed in favour of arbitration under the MOU

Ratio Decidendi

The re-amended Statement of Claim did not plead deliberate dishonesty and therefore did not fall within the fraud exclusion of Order 14; the MOU was non-binding so its arbitration clause did not compel a stay as against the Plaintiff; the assignment by deed and notice vested the right to sue in the Plaintiff under s.9 LARCO; the 1st Defendant failed to establish any credible meritorious defence by affidavit; accordingly summary judgment under Order 14 was appropriate for repayment of the advancement.

Court Disposition

Summary judgment application under Order 14 granted in favour of Plaintiff; application to stay proceedings for arbitration dismissed; re-amendment allowed; defendant's preliminary objection on fraud failed

Orders

  • Re-amendment of the Statement of Claim to replace allegation of fraudulent misrepresentation with negligent misrepresentation allowed
  • Summons for judgment under Order 14 granted: judgment for the Plaintiff for EUR 3,885,000 (or Hong Kong dollar equivalent at time of payment) with interest from date of writ to payment at judgment rate