CHRISTIAN EMIL TOGGENBURGER AND OTHERS v. LUU, HUNG VIET DERRICK AND OTHERS

CHRISTIAN EMIL TOGGENBURGER AND OTHERS v. LUU, HUNG VIET DERRICK AND OTHERS

The Court held that plaintiffs had established relevance, existence and sufficient indicia of possession for most requested document classes and that defendants' confidentiality objections could be addressed by redaction; the duty to disclose is independent and continuing so discovery was ordered for specified classes; in-camera HCMA proceedings were not shown to be related and therefore not discoverable; voluntary particulars were refused because they attempted to introduce new causes of action and should have been pursued by formal amendment rather than by voluntary particulars.

Citation
CHRISTIAN EMIL TOGGENBURGER AND OTHERS v. LUU, HUNG VIET DERRICK AND OTHERS
Parties
1st Plaintiff: Christian Emil Toggenburger; 2nd Plaintiff: Promised Land Enterprises Limited; 3rd Plaintiff: Globe Dragon Limited; 1st Defendant: Luu, Hung Viet Derrick; 2nd Defendant: Zhong Yi (Hong Kong) C.P.A. Company Limited; 3rd Defendant: Tang, Ka Siu Johnny
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 July 2011
Case Number
HCA815/2009
Procedural Posture
Civil: Disclosure, Restitution and Misrepresentation Claims / Pre Trial Review (applications for Specific Discovery and to Serve Voluntary Particulars)
Outcome
Specific discovery ordered against 1st Defendant for all classes except classes 6 and 8; specific discovery ordered against 2nd and 3rd Defendants (bank statements and corresponding ledger entries); leave granted to re-amend the summons against D2 and D3; application for leave to serve voluntary particulars...
Legal Topics
Specific Discovery, Voluntary Particulars, Stakeholder/escrow Duties, Money Had and Received, Total Failure of Consideration, Bank Statements and Ledger Tracing, In Camera Proceedings/confidentiality
Source Language
EN
Civil Procedure Contract Law Restitution Fraud/misrepresentation Company Law/accounts/escrow Evidence and Disclosure Specific Discovery Voluntary Particulars +5 more

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Parties

Christian Emil Toggenburger

1st Plaintiff

Promised Land Enterprises Limited

2nd Plaintiff

Globe Dragon Limited

3rd Plaintiff

Luu, Hung Viet Derrick

1st Defendant

Zhong Yi (Hong Kong) C.P.A. Company Limited

2nd Defendant

Tang, Ka Siu Johnny

3rd Defendant

Procedural Posture

Civil: Disclosure, Restitution and Misrepresentation Claims / Pre Trial Review (applications for Specific Discovery and to Serve Voluntary Particulars)

Legal Issues

  1. 1 Whether plaintiffs proved relevance, existence and possession necessary for specific discovery
  2. 2 Scope of discovery and whether requests are fishing or speculative
  3. 3 Whether confidentiality/in-camera proceedings preclude disclosure

Ratio Decidendi

The Court held that plaintiffs had established relevance, existence and sufficient indicia of possession for most requested document classes and that defendants' confidentiality objections could be addressed by redaction; the duty to disclose is independent and continuing so discovery was ordered for specified classes; in-camera HCMA proceedings were not shown to be related and therefore not discoverable; voluntary particulars were refused because they attempted to introduce new causes of action and should have been pursued by formal amendment rather than by voluntary particulars.

Court Disposition

Specific discovery ordered against 1st Defendant for all classes except classes 6 and 8; specific discovery ordered against 2nd and 3rd Defendants (bank statements and corresponding ledger entries); leave granted to re-amend the summons against D2 and D3; application for leave to serve voluntary particulars...

Orders

  • Order in terms of the Summons for specific discovery against the 1st Defendant for all classes of documents except classes 6 and 8; 1st Defendant to file and serve affidavit within 21 days
  • Leave granted to re-amend the Summons against the 2nd and 3rd Defendants