BMC GLOBAL LTD AND ANOTHER v. TOR ASIA CREDIT MASTER FUND LP AND OTHERS

BMC GLOBAL LTD AND ANOTHER v. TOR ASIA CREDIT MASTER FUND LP AND OTHERS

The plaintiffs' claim that an oral agreement extended the repayment date is weak on the evidence (inherent improbability, lack of contemporaneous records, conduct inconsistent with the alleged agreement, and equivocal correspondence); the injunction sought would have the practical effect of finally disposing of the substantive claim and therefore requires the plaintiffs to show strong prospects of success; weighing merits, adequacy of damages and balance of convenience, the court exercised its discretion to refuse the interim injunction and ordered costs to the 1st defendant.

Citation
BMC GLOBAL LTD AND ANOTHER v. TOR ASIA CREDIT MASTER FUND LP AND OTHERS
Parties
1st Plaintiff: BMC GLOBAL LIMITED; 2nd Plaintiff: LIM HO SOK; 1st Defendant: TOR ASIA CREDIT MASTER FUND LP; 2nd Defendants (purported Receivers and Managers): JOHN HOWARD BATCHELOR, KENNETH FUNG AND IAN JOHN MORTON; 3rd Defendant: LITHEA INC.
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 October 2016
Case Number
HCA2392/2016
Procedural Posture
Loan Facility/security Dispute; Commercial Injunction Application / Interlocutory Injunction Hearing — Application Dismissed (reasons Handed Down)
Outcome
Plaintiffs' application for interim interlocutory injunction dismissed; costs to 1st defendant with certificate for two counsel.
Legal Topics
Interim Injunction, Oral Variation of Contract, Enforcement of Security, Appointment of Receivers and Managers, Adequacy of Damages, Balance of Convenience
Source Language
EN
Commercial Law Contract Law Equity and Trusts Injunctions Security and Enforcement Receivership and Insolvency Interim Injunction Oral Variation of Contract +4 more

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Parties

BMC GLOBAL LIMITED

1st Plaintiff

LIM HO SOK

2nd Plaintiff

TOR ASIA CREDIT MASTER FUND LP

1st Defendant

JOHN HOWARD BATCHELOR, KENNETH FUNG AND IAN JOHN MORTON

2nd Defendants (purported Receivers and Managers)

LITHEA INC.

3rd Defendant

Procedural Posture

Loan Facility/security Dispute; Commercial Injunction Application / Interlocutory Injunction Hearing — Application Dismissed (reasons Handed Down)

Legal Issues

  1. 1 Whether an oral agreement was made on 31 August 2016 to extend the repayment date to 30 November 2016
  2. 2 Whether an interlocutory injunction should be granted to restrain enforcement of security/realisation of assets pending trial
  3. 3 Whether damages would be an adequate remedy for either party

Ratio Decidendi

The plaintiffs' claim that an oral agreement extended the repayment date is weak on the evidence (inherent improbability, lack of contemporaneous records, conduct inconsistent with the alleged agreement, and equivocal correspondence); the injunction sought would have the practical effect of finally disposing of the substantive claim and therefore requires the plaintiffs to show strong prospects of success; weighing merits, adequacy of damages and balance of convenience, the court exercised its discretion to refuse the interim injunction and ordered costs to the 1st defendant.

Court Disposition

Plaintiffs' application for interim interlocutory injunction dismissed; costs to 1st defendant with certificate for two counsel.

Orders

  • The plaintiffs' application for interim injunction dismissed.
  • 1st defendant to have costs of the application, to be taxed if not agreed, with certificate for two counsel.