TOP ONE INTERNATIONAL (CHINA) PROPERTY GROUP CO LTD AND ANOTHER v. TOP ONE PROPERTY GROUP LTD AND OTHERS

TOP ONE INTERNATIONAL (CHINA) PROPERTY GROUP CO LTD AND ANOTHER v. TOP ONE PROPERTY GROUP LTD AND OTHERS

Amendment to plead misrepresentation/estoppel and counterclaim was refused because the pleaded statements amounted to opinion/future intention without necessary particulars or evidence of dishonesty and were therefore legally defective; the court has no power to vary contractual powers of receivers appointed by the chargee and refused the representation application because the 2nd Defendant had a real conflict of interest with the 1st Plaintiff and there was no real conflict between receivers and the 1st Plaintiff; the injunction was refused because there were no serious issues to be tried on misrepresentation, mistake or unjust enrichment and, in any event, the balance of convenience...

Citation
TOP ONE INTERNATIONAL (CHINA) PROPERTY GROUP CO LTD AND ANOTHER v. TOP ONE PROPERTY GROUP LTD AND OTHERS
Parties
1st Plaintiff: Top One International (China) Property Group Company Limited; 2nd Plaintiff: The Bank of New York Mellon; 1st Defendant: Top One Property Group Limited; 2nd Defendant: Po For Yau; 3rd Defendant: Sun Jiangrong
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 September 2011
Case Number
HCA1244/2009
Procedural Posture
Civil Action Concerning Receivership, Share Charge Enforcement and Related Interlocutory Applications / Chambers Decision on Interlocutory Applications (representation, Amendment, Injunction, Withdrawal)
Outcome
Plaintiffs' withdrawal of claims against 2nd Defendant granted; 2nd Defendant's applications to vary receivers' powers (representation), to amend pleadings, and for a mandatory injunction refused; limited undertaking by receivers ordered
Legal Topics
Interlocutory Injunction, Variation of Receivers' Powers, Amendment of Defence, Withdrawal of Claims, Share Charge Enforcement, Misrepresentation, Promissory Estoppel, Unjust Enrichment, Conflict of Interest, American Cyanamid Balance of Convenience
Source Language
EN
Civil Procedure Equity Injunctions Receivership Contract Law Restitution/unjust Enrichment Company Law Evidence and Pleading +10 more

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Parties

Top One International (China) Property Group Company Limited

1st Plaintiff

The Bank of New York Mellon

2nd Plaintiff

Top One Property Group Limited

1st Defendant

Po For Yau

2nd Defendant

Sun Jiangrong

3rd Defendant

Procedural Posture

Civil Action Concerning Receivership, Share Charge Enforcement and Related Interlocutory Applications / Chambers Decision on Interlocutory Applications (representation, Amendment, Injunction, Withdrawal)

Legal Issues

  1. 1 Whether the court can vary contractual powers of receivers appointed by a chargee
  2. 2 Whether proposed amendments alleging misrepresentation/estoppel and a counterclaim should be permitted
  3. 3 Whether a mandatory interlocutory injunction should compel receivers to permit the mortgagor/charged party to represent the company in foreign proceedings

Ratio Decidendi

Amendment to plead misrepresentation/estoppel and counterclaim was refused because the pleaded statements amounted to opinion/future intention without necessary particulars or evidence of dishonesty and were therefore legally defective; the court has no power to vary contractual powers of receivers appointed by the chargee and refused the representation application because the 2nd Defendant had a real conflict of interest with the 1st Plaintiff and there was no real conflict between receivers and the 1st Plaintiff; the injunction was refused because there were no serious issues to be tried on misrepresentation, mistake or unjust enrichment and, in any event, the balance of convenience...

Court Disposition

Plaintiffs' withdrawal of claims against 2nd Defendant granted; 2nd Defendant's applications to vary receivers' powers (representation), to amend pleadings, and for a mandatory injunction refused; limited undertaking by receivers ordered

Orders

  • Plaintiffs\' summons dated 25 February 2011 to withdraw claims against the 2nd Defendant granted with costs to the 2nd Defendant
  • The 2nd Defendant\'s Representation Application (summons dated 15 October 2010) refused