THE EXPORT- IMPORT BANK OF CHINA v. TAIFENG TEXTILE GROUP CO LTD AND ANOTHER

THE EXPORT- IMPORT BANK OF CHINA v. TAIFENG TEXTILE GROUP CO LTD AND ANOTHER

The Court held that (1) a contractual clause will satisfy the MJREO definition of a 'choice of Mainland court agreement' if, properly construed in accordance with the governing law, it confers exclusive jurisdiction on Mainland courts even if it does not use the word 'exclusive'; (2) production of an original court certificate under s6(2)/Order71A is persuasive and creates a presumption of enforceability but is not the sole admissible proof — Order71A r3 is directory not mandatory; (3) s21M may cover applications made after foreign judgment where interim relief is needed to facilitate enforcement, but (4) on the facts the Bank failed to prove a real risk of dissipation and there was...

Citation
[2018] HKCFI 1840
Parties
Plaintiff / Judgment Creditor: The Export-Import Bank of China; 1st Defendant / Judgment Debtor: Taifeng Textile Group Company Limited (TTG); 2nd Defendant / Guarantor / Judgment Debtor: Liu
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 August 2018
Case Number
HCMP3012/2015
Procedural Posture
Registration of Foreign Judgment and Mareva Injunction Applications / Interlocutory Hearings (setting Aside, Discharge and Continuation Applications)
Outcome
Setting Aside Summons dismissed; Injunction originating summons dismissed for lack of evidence of risk of dissipation; no substantive discharge order entered on Discharge Summons though judge indicated she would have discharged the injunction for material non‑disclosure if necessary; Registration Order remains in force
Legal Topics
Registration of Mainland Judgment Under MJREO, Choice of Court Agreement, Order 71 a Evidential Requirements, S21 M Interim Relief in Aid of Foreign Proceedings, Material Non Disclosure in Ex Parte Applications, Risk of Dissipation Test
Source Language
EN
Civil Procedure Enforcement of Foreign Judgments Conflict of Laws Contract Law Equity (mareva Injunctions) Registration of Mainland Judgment Under MJREO Choice of Court Agreement Order 71 a Evidential Requirements +3 more

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Parties

The Export-Import Bank of China

Plaintiff / Judgment Creditor

Taifeng Textile Group Company Limited (TTG)

1st Defendant / Judgment Debtor

Liu

2nd Defendant / Guarantor / Judgment Debtor

Procedural Posture

Registration of Foreign Judgment and Mareva Injunction Applications / Interlocutory Hearings (setting Aside, Discharge and Continuation Applications)

Legal Issues

  1. 1 Whether Clause 32 of the Guarantee constitutes a 'choice of Mainland court agreement' within s3(2) and meets s5(2)(b) MJREO
  2. 2 Whether the Mainland judgment was shown to be enforceable in the Mainland for s5(2)(d) MJREO and whether an original court certificate under s6(2)/Order71A r3(1)(a)(iii) is mandatory
  3. 3 Whether the Court has jurisdiction under s21M HCO to grant or continue Mareva relief after foreign judgment has been entered

Ratio Decidendi

The Court held that (1) a contractual clause will satisfy the MJREO definition of a 'choice of Mainland court agreement' if, properly construed in accordance with the governing law, it confers exclusive jurisdiction on Mainland courts even if it does not use the word 'exclusive'; (2) production of an original court certificate under s6(2)/Order71A is persuasive and creates a presumption of enforceability but is not the sole admissible proof — Order71A r3 is directory not mandatory; (3) s21M may cover applications made after foreign judgment where interim relief is needed to facilitate enforcement, but (4) on the facts the Bank failed to prove a real risk of dissipation and there was...

Court Disposition

Setting Aside Summons dismissed; Injunction originating summons dismissed for lack of evidence of risk of dissipation; no substantive discharge order entered on Discharge Summons though judge indicated she would have discharged the injunction for material non‑disclosure if necessary; Registration Order remains in force

Orders

  • Registration Order (HCMP 3012/2015) upheld (Mainland judgment registered)
  • Setting Aside Summons dismissed; order nisi that Liu pay the Bank's costs of and occasioned by the Setting Aside Summons to be taxed if not agreed (party and party) with certificate for counsel