KAYNE CREDITORS v. RODERICK JOHN SUTTON AND OTHERS

KAYNE CREDITORS v. RODERICK JOHN SUTTON AND OTHERS

The court accepted it has jurisdiction under s76 to order production against provisional liquidators but set aside Master Hui's ex parte order because there was material non-disclosure at the ex parte stage (failure to disclose the strike out of the claim against Sino Bright, the first strike out of the RICO claim, and the lapse of the US discovery cut-off date), and because many items sought were drafted as impermissible classes/fishing; on balance the court declined to re-grant the order and made specified costs awards.

Citation
KAYNE CREDITORS v. RODERICK JOHN SUTTON AND OTHERS
Parties
Applicant: Kayne Creditors; 1st Respondent (provisional Liquidator): Roderick John Sutton; 2nd Respondent: Accolade (PTC) Inc; 3rd Respondent: Sino Bright Enterprises Co Ltd
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 September 2013
Case Number
HCMP463/2013
Procedural Posture
Application Under Evidence Ordinance S76 / Order 70 for Production Pursuant to Foreign Letter of Request / Chambers Hearing on Summons to Set Aside Ex Parte Order (application to Discharge Master Hui's Order)
Outcome
Paragraph one of Master Hui's order set aside; application to re-grant refused
Legal Topics
Letter of Request, Implied Undertaking as to Documents, Third Party Discovery, Particular Documents Vs Classes, Material Non Disclosure in Ex Parte Applications, Discovery Cut Off and Admissibility, Alter Ego Corporate Veil Piercing
Source Language
EN
Evidence Law Civil Procedure Insolvency and Liquidation International Judicial Assistance Company Law Letter of Request Implied Undertaking as to Documents Third Party Discovery +4 more

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Parties

Kayne Creditors

Applicant

Roderick John Sutton

1st Respondent (provisional Liquidator)

Accolade (PTC) Inc

2nd Respondent

Sino Bright Enterprises Co Ltd

3rd Respondent

Procedural Posture

Application Under Evidence Ordinance S76 / Order 70 for Production Pursuant to Foreign Letter of Request / Chambers Hearing on Summons to Set Aside Ex Parte Order (application to Discharge Master Hui's Order)

Legal Issues

  1. 1 Whether the Hong Kong court has power to order production of documents under a foreign letter of request against provisional liquidators
  2. 2 Whether documents sought were 'particular documents' or impermissible classes/fishing expedition
  3. 3 Whether the implied undertaking attaching to documents in liquidation prevents disclosure to a foreign court and if so whether public interest outweighs it

Ratio Decidendi

The court accepted it has jurisdiction under s76 to order production against provisional liquidators but set aside Master Hui's ex parte order because there was material non-disclosure at the ex parte stage (failure to disclose the strike out of the claim against Sino Bright, the first strike out of the RICO claim, and the lapse of the US discovery cut-off date), and because many items sought were drafted as impermissible classes/fishing; on balance the court declined to re-grant the order and made specified costs awards.

Court Disposition

Paragraph one of Master Hui's order set aside; application to re-grant refused

Orders

  • Paragraph one of Master Hui's order discharged (order for production set aside)
  • Court declines to re-grant any part of the ex parte order