CHU KONG v. LAU WING YAN AND OTHERS

CHU KONG v. LAU WING YAN AND OTHERS

The matter is a multiple derivative action which is not "the subject of an arbitration agreement" under s20(1) because the core complaints are against defendants who are not parties to the arbitration agreement; consequently the court must dismiss the applicant's summons to refer the dispute to arbitration.

Citation
CHU KONG v. LAU WING YAN AND OTHERS
Parties
Plaintiff: Plaintiff; Company (subject): The Company; 1st Defendant: Lau Wing Yan; 2nd Defendant: Giant Shine Limited; 3rd Defendant: Wong Wing Yee; 4th Defendant (applicant): Ever Ning Shipping and Trading Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 October 2017
Case Number
HCA226/2017
Procedural Posture
Multiple Derivative Action (company Law With Arbitration Issue) / Application Under S20(1) Arbitration Ordinance to Refer Matter to Arbitration; Hearing in Chambers and Judgment on Summons
Outcome
summons dismissed
Legal Topics
Stay to Arbitration, Arbitrability, Multiple Derivative Action, Validity of Supplemental Agreement, Director's Breach of Fiduciary Duty
Source Language
EN
Arbitration Company Law Contract Law Fiduciary Duties Stay to Arbitration Arbitrability Multiple Derivative Action Validity of Supplemental Agreement +1 more

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Parties

Plaintiff

Plaintiff

The Company

Company (subject)

Lau Wing Yan

1st Defendant

Giant Shine Limited

2nd Defendant

Wong Wing Yee

3rd Defendant

Ever Ning Shipping and Trading Limited

4th Defendant (applicant)

Procedural Posture

Multiple Derivative Action (company Law With Arbitration Issue) / Application Under S20(1) Arbitration Ordinance to Refer Matter to Arbitration; Hearing in Chambers and Judgment on Summons

Legal Issues

  1. 1 Whether the action is a matter "the subject of an arbitration agreement" under s20(1) Arbitration Ordinance
  2. 2 Whether a multiple derivative action is arbitrable between the plaintiff and the contracting party to a supplemental agreement when the alleged wrongdoers are not parties to the arbitration agreement
  3. 3 Whether an arbitration clause applies where the plaintiff alleges the director lacked authority to enter the supplemental agreement

Ratio Decidendi

The matter is a multiple derivative action which is not "the subject of an arbitration agreement" under s20(1) because the core complaints are against defendants who are not parties to the arbitration agreement; consequently the court must dismiss the applicant's summons to refer the dispute to arbitration.

Court Disposition

summons dismissed

Orders

  • Summons of the 4th defendant dismissed
  • Order nisi for costs payable forthwith to plaintiff to be summarily assessed