CHINA UNITED HOLDINGS LTD AND OTHERS v. LAM HOW MUN PETER AND OTHERS

CHINA UNITED HOLDINGS LTD AND OTHERS v. LAM HOW MUN PETER AND OTHERS

The court refused the interim injunction because the mortgagee's right to possession is not displaced by the 3rd plaintiff's claim for unliquidated damages; the balance of convenience favoured the mortgagee given the vacant premises, the debt significantly exceeded the court valuation, interest was accruing, and the applicant could not provide a suitably fortified cross-undertaking in damages.

Citation
CHINA UNITED HOLDINGS LTD AND OTHERS v. LAM HOW MUN PETER AND OTHERS
Parties
1st Plaintiff: China United Holdings Limited; 2nd Plaintiff: Great Gains International Limited; 3rd Plaintiff: East Champion Limited; 4th Plaintiff: Large Investments Limited; 1st Defendant: Lam How Mun Peter; 2nd Defendant: Kwok Wai Tak also known as Kwok Han Qiao; 3rd Defendant: Kwok Wai Ming; 4th Defendant: Get Rich Enterprises Limited; 6th Defendant: 6th Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
1 June 2005
Case Number
HCA1589/2003
Procedural Posture
Civil Claim for Damages and Equitable Compensation; Interlocutory Injunction Application / Urgent Interim Application for Injunction / Stay Uplift Hearing
Outcome
Application dismissed
Legal Topics
Interim Injunction, Receivers and Managers, Mortgagee Possession, Dishonest Assistance, Equitable Compensation, Security for Costs, Cross Undertaking in Damages
Source Language
EN
Civil Equity Property Commercial Banking Interim Injunction Receivers and Managers Mortgagee Possession +4 more

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Parties

China United Holdings Limited

1st Plaintiff

Great Gains International Limited

2nd Plaintiff

East Champion Limited

3rd Plaintiff

Large Investments Limited

4th Plaintiff

Lam How Mun Peter

1st Defendant

Kwok Wai Tak also known as Kwok Han Qiao

2nd Defendant

Kwok Wai Ming

3rd Defendant

Get Rich Enterprises Limited

4th Defendant

6th Defendant

6th Defendant

Procedural Posture

Civil Claim for Damages and Equitable Compensation; Interlocutory Injunction Application / Urgent Interim Application for Injunction / Stay Uplift Hearing

Legal Issues

  1. 1 Whether an interim injunction should restrain receivers appointed by the mortgagee pending trial
  2. 2 Whether the mortgagor's unliquidated claim for damages or equitable compensation displaces the mortgagee's right to possession
  3. 3 Whether the balance of convenience and requirement for a cross-undertaking favour granting injunction

Ratio Decidendi

The court refused the interim injunction because the mortgagee's right to possession is not displaced by the 3rd plaintiff's claim for unliquidated damages; the balance of convenience favoured the mortgagee given the vacant premises, the debt significantly exceeded the court valuation, interest was accruing, and the applicant could not provide a suitably fortified cross-undertaking in damages.

Court Disposition

Application dismissed

Orders

  • Leave granted to the 3rd plaintiff to amend the summons dated 31 May 2005 subject to correction replacing 'the Petitioner' with 'the 3rd plaintiff' in paragraph 1
  • Application for interim injunction restraining the 6th defendant and its receivers from exercising powers over the Basement Premises dismissed