PACIFIC DUNLOP GARMENTS LTD v. FUNDAMENTAL GLOBAL LTD AND OTHERS

PACIFIC DUNLOP GARMENTS LTD v. FUNDAMENTAL GLOBAL LTD AND OTHERS

On the material before the court the plaintiff demonstrated a good arguable case under Order 11 rule 1(c) that Kylin holds the shares as a nominee of the defendants and is a necessary and proper party; the court therefore granted joinder and leave to serve out under Order 11 r1(c). The PRC law expert evidence was relevant and, despite delay, admissible because denying it would unfairly prejudice the plaintiff and defendants would not suffer real prejudice. A split trial of liability before damages was justified because defendants' transfer of shares risked defeating specific performance; all applications were allowed as indulgences despite delay and no orders as to costs were made for the...

Citation
PACIFIC DUNLOP GARMENTS LTD v. FUNDAMENTAL GLOBAL LTD AND OTHERS
Parties
Plaintiff: Plaintiff; Defendant: 1st Defendant; 2nd Defendant: GAIN-PLUS HOLDINGS LIMITED; 3rd Defendant: CHALLENGE GLOBAL LIMITED; Proposed/joined Party: Kylin Prosper Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 May 2012
Case Number
HCA1655/2008
Procedural Posture
Civil Contract Action for Specific Performance and Damages / Pre Trial Review (pre Trial Review Hearing)
Outcome
Plaintiff's joinder, amendment of writ, service out on Kylin under Order 11 r1(c), permission to adduce PRC law expert evidence and split trial of liability before quantum were granted; no order as to costs for the summonses; costs of pre-trial review in the cause.
Legal Topics
Specific Performance, Joinder, Service Out of Jurisdiction, Lifting Corporate Veil, Expert Evidence Admissibility, Split Trial, Case Management (cjr), Delay and Costs
Source Language
EN
Contract Civil Procedure Equity Property Conflict of Laws Specific Performance Joinder Service Out of Jurisdiction +5 more

Case Brief

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Parties

Plaintiff

Plaintiff

1st Defendant

Defendant

GAIN-PLUS HOLDINGS LIMITED

2nd Defendant

CHALLENGE GLOBAL LIMITED

3rd Defendant

Kylin Prosper Limited

Proposed/joined Party

Procedural Posture

Civil Contract Action for Specific Performance and Damages / Pre Trial Review (pre Trial Review Hearing)

Legal Issues

  1. 1 Whether the plaintiff was in repudiatory breach of the Agreement
  2. 2 Whether the plaintiff validly exercised the option to acquire the Property instead of shares
  3. 3 Whether the circumstances constituted 'unacceptable risks' justifying the plaintiff's conduct

Ratio Decidendi

On the material before the court the plaintiff demonstrated a good arguable case under Order 11 rule 1(c) that Kylin holds the shares as a nominee of the defendants and is a necessary and proper party; the court therefore granted joinder and leave to serve out under Order 11 r1(c). The PRC law expert evidence was relevant and, despite delay, admissible because denying it would unfairly prejudice the plaintiff and defendants would not suffer real prejudice. A split trial of liability before damages was justified because defendants' transfer of shares risked defeating specific performance; all applications were allowed as indulgences despite delay and no orders as to costs were made for the...

Court Disposition

Plaintiff's joinder, amendment of writ, service out on Kylin under Order 11 r1(c), permission to adduce PRC law expert evidence and split trial of liability before quantum were granted; no order as to costs for the summonses; costs of pre-trial review in the cause.

Orders

  • Joinder of Kylin Prosper Limited as a party to the action
  • Leave to amend the concurrent writ of summons