WINGAMES INVESTMENTS LTD AND OTHERS v. MASCOT LAND LTD AND OTHERS

WINGAMES INVESTMENTS LTD AND OTHERS v. MASCOT LAND LTD AND OTHERS

The Court of Appeal allowed the defendants' appeal: the judge erred in making a final order for return of cross-deposits on 3 October 2011 without jurisdiction to determine the substantive rights in the absence of any summary determination application or notice; paragraphs of the counterclaim seeking damages founded on the plaintiffs' cross-undertaking were struck out because a cross-undertaking does not create an independent cause of action; the plaintiffs' Order 14 summons was wrongly dismissed on functus officio grounds and is remitted to the Court of First Instance for determination (subject to the fraud-exception issue being fully considered at first instance).

Citation
WINGAMES INVESTMENTS LTD AND OTHERS v. MASCOT LAND LTD AND OTHERS
Parties
1st Plaintiff: WINGAMES INVESTMENTS LIMITED; 2nd Plaintiff: CHINA HEALTHCARE HOLDINGS LIMITED; 3rd Plaintiff: CHC INVESTMENT HOLDINGS LIMITED; 1st Defendant: MASCOT LAND LIMITED; 2nd Defendant: CHINA ZHONGFU INDUSTRY CO. LIMITED; 3rd Defendant: SHANGHAI ZHONGFU INTERNATIONAL TRADING CO. LIMITED; 4th Defendant: ANHUI ANHE INVESTMENT CONSULTING CO. LIMITED; 5th Defendant: WANG JISHENG; 6th Defendant: GE QIANSONG
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 January 2013
Case Number
HCMP2691/2011
Procedural Posture
Civil Appeal and Ancillary Applications for Leave to Appeal (interlocutory) / Appeal From Interlocutory Orders and Applications for Leave to Appeal; Remittal of Summary Judgment Application to Court of First Instance
Outcome
Appeal allowed in CACV 63/2012; Judge's order dated 3 October 2011 in respect of return of deposits set aside; leave to appeal in HCMP 2691/2011 granted in part and appeals allowed in part
Legal Topics
Mandatory Injunction, Cross Undertaking in Damages, Summary Judgment (order 14), Functus Officio, Strike Out, Case Management
Source Language
EN
Civil Procedure Equity Contract Injunctions Mandatory Injunction Cross Undertaking in Damages Summary Judgment (order 14) Functus Officio +2 more

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Parties

WINGAMES INVESTMENTS LIMITED

1st Plaintiff

CHINA HEALTHCARE HOLDINGS LIMITED

2nd Plaintiff

CHC INVESTMENT HOLDINGS LIMITED

3rd Plaintiff

MASCOT LAND LIMITED

1st Defendant

CHINA ZHONGFU INDUSTRY CO. LIMITED

2nd Defendant

SHANGHAI ZHONGFU INTERNATIONAL TRADING CO. LIMITED

3rd Defendant

ANHUI ANHE INVESTMENT CONSULTING CO. LIMITED

4th Defendant

WANG JISHENG

5th Defendant

GE QIANSONG

6th Defendant

Procedural Posture

Civil Appeal and Ancillary Applications for Leave to Appeal (interlocutory) / Appeal From Interlocutory Orders and Applications for Leave to Appeal; Remittal of Summary Judgment Application to Court of First Instance

Legal Issues

  1. 1 Whether the Court of First Instance had jurisdiction to make a final order returning cross-deposits without a substantive application or notice and without summary determination procedures
  2. 2 Whether a claim for damages founded on a cross-undertaking in damages constitutes a cause of action and can be pleaded as a counterclaim
  3. 3 Whether an application for summary judgment under Order 14 is barred where the action includes a claim based on an allegation of fraud (Order 14 r.1(2)(b))

Ratio Decidendi

The Court of Appeal allowed the defendants' appeal: the judge erred in making a final order for return of cross-deposits on 3 October 2011 without jurisdiction to determine the substantive rights in the absence of any summary determination application or notice; paragraphs of the counterclaim seeking damages founded on the plaintiffs' cross-undertaking were struck out because a cross-undertaking does not create an independent cause of action; the plaintiffs' Order 14 summons was wrongly dismissed on functus officio grounds and is remitted to the Court of First Instance for determination (subject to the fraud-exception issue being fully considered at first instance).

Court Disposition

Appeal allowed in CACV 63/2012; Judge's order dated 3 October 2011 in respect of return of deposits set aside; leave to appeal in HCMP 2691/2011 granted in part and appeals allowed in part

Orders

  • Set aside the Court of First Instance order dated 3 October 2011 insofar as it ordered repayment of the HK$44,000,000 and RMB37,928,000 deposits
  • Grant leave to appeal and allow appeal to set aside the Judge's refusal to strike out paragraphs 70, 71 and paragraph (2) of the Prayer of the Amended Counterclaim dated 14 November 2011; strike out those paragraphs