KING FIELD SHIPYARD LTD v. TAI PAK SEA-FOOD RESTAURANT LTD AND ANOTHER

KING FIELD SHIPYARD LTD v. TAI PAK SEA-FOOD RESTAURANT LTD AND ANOTHER

The court held that the high threshold to strike out the claim (that it is impossible to succeed) is not met: there is a serious issue to be tried as to enforceability of the Agreement and entitlement to specific performance given the uniqueness of the boats and licences and the dispute as to which party prevented completion; on balance of convenience preservation orders should be granted in principle and the interim-interim order continued, subject to agreement on the form of preservation and any additional fortification within 21 days.

Citation
[2024] HKCFI 898
Parties
Plaintiff: Plaintiff; 1st Defendant: 1st Defendant; 2nd Defendant: 2nd Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 April 2024
Case Number
HCA1494/2022
Procedural Posture
Preservation Summons for Interlocutory Preservation Orders (proprietary Injunction) Pending Trial / Interlocutory Hearing / Application (preservation Summons)
Outcome
Preservation order granted in principle; interim-interim preservation order continued; parties to agree form and fortification within 21 days; costs order nisi made
Legal Topics
Specific Performance, Preservation Order, Balance of Convenience, Adequacy of Damages, Automatic Termination Clause, Prevention Principle, American Cyanamid Interlocutory Test
Source Language
EN
Contract Equity Injunctions Property Maritime Civil Procedure Specific Performance Preservation Order +5 more

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Parties

Plaintiff

Plaintiff

1st Defendant

1st Defendant

2nd Defendant

2nd Defendant

Procedural Posture

Preservation Summons for Interlocutory Preservation Orders (proprietary Injunction) Pending Trial / Interlocutory Hearing / Application (preservation Summons)

Legal Issues

  1. 1 Whether there is a serious issue to be tried that the Agreement is enforceable and specifically enforceable by specific performance
  2. 2 Whether damages are an adequate remedy
  3. 3 Whether the balance of convenience favors preservation orders

Ratio Decidendi

The court held that the high threshold to strike out the claim (that it is impossible to succeed) is not met: there is a serious issue to be tried as to enforceability of the Agreement and entitlement to specific performance given the uniqueness of the boats and licences and the dispute as to which party prevented completion; on balance of convenience preservation orders should be granted in principle and the interim-interim order continued, subject to agreement on the form of preservation and any additional fortification within 21 days.

Court Disposition

Preservation order granted in principle; interim-interim preservation order continued; parties to agree form and fortification within 21 days; costs order nisi made

Orders

  • Continue the 28 April 2023 interim-interim preservation order in relation to the Remaining Hull Parts until final determination of the action or further order
  • Grant preservation order in principle in relation to the Tai Pak Boats subject to parties agreeing the precise form of preservation and any additional fortification within 21 days