JENHO DEVELOPMENT LTD v. PENSONIC TECHNOLOGY (HK) LTD

JENHO DEVELOPMENT LTD v. PENSONIC TECHNOLOGY (HK) LTD

Application for leave to appeal dismissed because the alleged additional breaches were not pleaded and therefore could not form the basis of relief; the state‑of‑the‑evidence bar prevents raising unpleaded points on appeal unless there was no reasonable possibility evidence would be materially more favourable had they been pleaded; there was no reasonable prospect of success under s63A(2).

Citation
JENHO DEVELOPMENT LTD v. PENSONIC TECHNOLOGY (HK) LTD
Parties
Plaintiff: JENHO DEVELOPMENT LTD; Defendant: PENSONIC TECHNOLOGY (HK) LIMITED; 1st Third Party: TSE TUNG HOI; 2nd Third Party: EXA TECHNOLOGY AND DEVELOPMENT COMPANY LIMITED
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
29 January 2013
Case Number
DCCJ4402/2009
Procedural Posture
Civil Third Party Action in District Court / Post‑judgment Application for Leave to Appeal (summons Filed 14 January 2013; Decision 29 January 2013)
Outcome
Application for leave to appeal dismissed
Legal Topics
Conspiracy, Misappropriation, Account of Profits, Pleading Requirements for Breach of Trust, Standard for Leave to Appeal, State of the Evidence Bar
Source Language
EN
Company Law Trusts and Fiduciary Duties Civil Procedure Criminal Investigation References Conspiracy Misappropriation Account of Profits Pleading Requirements for Breach of Trust +2 more

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Parties

JENHO DEVELOPMENT LTD

Plaintiff

PENSONIC TECHNOLOGY (HK) LIMITED

Defendant

TSE TUNG HOI

1st Third Party

EXA TECHNOLOGY AND DEVELOPMENT COMPANY LIMITED

2nd Third Party

Procedural Posture

Civil Third Party Action in District Court / Post‑judgment Application for Leave to Appeal (summons Filed 14 January 2013; Decision 29 January 2013)

Legal Issues

  1. 1 Whether leave to appeal should be granted under s63A(2) District Court Ordinance
  2. 2 Whether breach of fiduciary duty for retaining sales proceeds in Tse’s personal account was pleaded
  3. 3 Whether court applied incorrect standard of proof to fiduciary duty claim

Ratio Decidendi

Application for leave to appeal dismissed because the alleged additional breaches were not pleaded and therefore could not form the basis of relief; the state‑of‑the‑evidence bar prevents raising unpleaded points on appeal unless there was no reasonable possibility evidence would be materially more favourable had they been pleaded; there was no reasonable prospect of success under s63A(2).

Court Disposition

Application for leave to appeal dismissed

Orders

  • Application for leave to appeal dismissed
  • Costs to Tse; costs to be taxed if not agreed, with certificate for counsel