PAI CHIN MING v. LUO XIAO AND OTHERS

PAI CHIN MING v. LUO XIAO AND OTHERS

The application was dismissed in part because the court found on the balance of evidence that the bank statements/cheque copies showing payment did not exist or, alternatively, were not relevant as pleadings acknowledged receipt not payment; for documents relating to the Purported 2000 Agreement and HCA 654/2006, although existence and relevancy were not disputed, the defendants swore they did not have possession custody or power of them and there is no jurisdiction to compel them to obtain such documents from third parties, so the court lacked jurisdiction to order discovery and in the exercise of its discretion dismissed the remaining items while granting discovery only for items 1, 2...

Citation
PAI CHIN MING v. LUO XIAO AND OTHERS
Parties
Plaintiff: Plaintiff; 1st Defendant: 1st Defendant; 2nd Defendant: 2nd Defendant; 3rd Defendant: 3rd Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 August 2008
Case Number
HCA2693/2006
Procedural Posture
Derivative Action / Discovery; Application for Specific Discovery (order 24 Rule 7)
Outcome
Application dismissed in part; order for specific discovery granted only for items 1, 2 and 5 of the schedule; remaining items dismissed
Legal Topics
Specific Discovery, Order 24 Rule 7, Fiduciary Duties, Possession Custody and Power, Derivative Action
Source Language
EN
Civil Procedure Company Law Equity Discovery Law Specific Discovery Order 24 Rule 7 Fiduciary Duties Possession Custody and Power +1 more

Case Brief

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Parties

Plaintiff

Plaintiff

1st Defendant

1st Defendant

2nd Defendant

2nd Defendant

3rd Defendant

3rd Defendant

Procedural Posture

Derivative Action / Discovery; Application for Specific Discovery (order 24 Rule 7)

Legal Issues

  1. 1 Whether the documents exist
  2. 2 Whether the documents are relevant to issues in the action
  3. 3 Whether the documents are within the possession custody or power of the defendants

Ratio Decidendi

The application was dismissed in part because the court found on the balance of evidence that the bank statements/cheque copies showing payment did not exist or, alternatively, were not relevant as pleadings acknowledged receipt not payment; for documents relating to the Purported 2000 Agreement and HCA 654/2006, although existence and relevancy were not disputed, the defendants swore they did not have possession custody or power of them and there is no jurisdiction to compel them to obtain such documents from third parties, so the court lacked jurisdiction to order discovery and in the exercise of its discretion dismissed the remaining items while granting discovery only for items 1, 2...

Court Disposition

Application dismissed in part; order for specific discovery granted only for items 1, 2 and 5 of the schedule; remaining items dismissed

Orders

  • Specific discovery granted for items 1, 2 and 5 of the schedule to the plaintiff's summons
  • All remaining discovery items in the summons dismissed