CHOW FU HSIEN v. K VISION INTERNATIONAL INVESTMENT (HK) LTD

CHOW FU HSIEN v. K VISION INTERNATIONAL INVESTMENT (HK) LTD

The Court had jurisdiction to hear the appeal. The defendant, as trustee, failed to discharge the burden of proving that the three specified payments should be deducted from the proceeds except for the second payment of RMB62,201,000 which the Court found should be deducted. The Master’s overall account is therefore varied by deleting the HK$37,787,830.40 figure and substituting a recalculated figure to reflect the deduction; parties to agree figure or restore appeal for determination. Interest is to run from the date of the writ; the Master's approach on compounding was affirmed (court's discretion to award compound interest upheld).

Citation
CHOW FU HSIEN v. K VISION INTERNATIONAL INVESTMENT (HK) LTD
Parties
Plaintiff: Plaintiff; Defendant/appellant: K Vision International Investment (H.K.) Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 July 2010
Case Number
HCA2884/2004
Procedural Posture
Appeal From Master's Order (account) / Hearing on Appeal in Court of First Instance
Outcome
Appeal allowed in part and varied; Master’s Order otherwise affirmed; appeal and cross-appeal on interest dismissed; liberty to apply preserved
Legal Topics
Declaration of Trust, Account of Profits, Jurisdiction of Appeal From Master, Admissibility of Fresh/expert Evidence on Appeal, Burden of Proof on Trustee, Compound Interest, Use of Prior Arbitration Findings
Source Language
EN
Trusts and Equity Civil Procedure Accounting and Account of Profits Arbitration Interest and Remedies Costs Declaration of Trust Account of Profits +5 more

Case Brief

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Parties

Plaintiff

Plaintiff

K Vision International Investment (H.K.) Limited

Defendant/appellant

Procedural Posture

Appeal From Master's Order (account) / Hearing on Appeal in Court of First Instance

Legal Issues

  1. 1 Whether the Court of First Instance had jurisdiction to hear the appeal under Order 44 r.12 read with Order 58 r.1
  2. 2 Whether the Master correctly assessed the net amount receivable from disposals and awarded 35% to the plaintiff
  3. 3 Whether the three specified payments (the 3 payments) should be deducted from proceeds

Ratio Decidendi

The Court had jurisdiction to hear the appeal. The defendant, as trustee, failed to discharge the burden of proving that the three specified payments should be deducted from the proceeds except for the second payment of RMB62,201,000 which the Court found should be deducted. The Master’s overall account is therefore varied by deleting the HK$37,787,830.40 figure and substituting a recalculated figure to reflect the deduction; parties to agree figure or restore appeal for determination. Interest is to run from the date of the writ; the Master's approach on compounding was affirmed (court's discretion to award compound interest upheld).

Court Disposition

Appeal allowed in part and varied; Master’s Order otherwise affirmed; appeal and cross-appeal on interest dismissed; liberty to apply preserved

Orders

  • Vary Master\u2019s Order of 17 November 2009 by deleting HK$37,787,830.50 in paragraph (1) and substituting a figure to be agreed between the parties in accordance with this judgment, failing which the parties may restore the appeal for determination of that figure
  • Master\u2019s Order of 17 November 2009 otherwise affirmed