SHE TSU YI v. TSUI KI TING AND OTHERS

SHE TSU YI v. TSUI KI TING AND OTHERS

Court found the pleaded Pre-condition did not exist; the 2nd set of resolutions and contemporaneous evidence show RMB3,600,000 was part of uncalled capital not immediately payable. The Agreement of May 2002 was binding and plaintiff was in equity a 30% shareholder and entitled to specific performance. The Tsui brothers breached fiduciary duties and committed fraud by divesting Po Tek's 15% interest; Million Sense and Vast Land dishonestly assisted and knowingly received the interest; the Discharge Agreement and the 15/8/03 Trust Agreement are void. Remedies: declarations, rectification, account, damages to be assessed, interest and costs to plaintiff.

Citation
SHE TSU YI v. TSUI KI TING AND OTHERS
Parties
Plaintiff: Mr She; 1st Defendant: Mr Tsui; 2nd Defendant: Mr Ser; 3rd Defendant: Million Sense; 4th Defendant: Vast Land; 7th Defendant: Po Tek
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 November 2007
Case Number
HCA1684/2004
Procedural Posture
Shareholder Dispute; Derivative Action; Contract and Equitable Claims / Judgment at Trial
Outcome
Judgment for plaintiff on personal and derivative claims
Legal Topics
Specific Performance, Derivative Action, Breach of Fiduciary Duty, Dishonest Assistance, Knowing Receipt, Conspiracy to Injure, Estoppel, Rectification of Registers, Account and Inquiry
Source Language
EN
Company Law Equity Contract Trusts Fraud Tort (conspiracy) Specific Performance Derivative Action +7 more

Case Brief

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Parties

Mr She

Plaintiff

Mr Tsui

1st Defendant

Mr Ser

2nd Defendant

Million Sense

3rd Defendant

Vast Land

4th Defendant

Po Tek

7th Defendant

Procedural Posture

Shareholder Dispute; Derivative Action; Contract and Equitable Claims / Judgment at Trial

Legal Issues

  1. 1 Whether the alleged Agreement was subject to a pre-condition to pay RMB3,600,000
  2. 2 Whether the plaintiff was a 30% shareholder of Po Tek and entitled to relief including rectification and specific performance
  3. 3 Whether the plaintiff had locus standi to bring derivative claims for Po Tek

Ratio Decidendi

Court found the pleaded Pre-condition did not exist; the 2nd set of resolutions and contemporaneous evidence show RMB3,600,000 was part of uncalled capital not immediately payable. The Agreement of May 2002 was binding and plaintiff was in equity a 30% shareholder and entitled to specific performance. The Tsui brothers breached fiduciary duties and committed fraud by divesting Po Tek's 15% interest; Million Sense and Vast Land dishonestly assisted and knowingly received the interest; the Discharge Agreement and the 15/8/03 Trust Agreement are void. Remedies: declarations, rectification, account, damages to be assessed, interest and costs to plaintiff.

Court Disposition

Judgment for plaintiff on personal and derivative claims

Orders

  • Specific performance of the Agreement against the 1st and 2nd defendants (Tsui brothers)
  • Declaration that Mr She was and is a 30% shareholder of Po Tek