JOSE MIRANDA DA COSTA JUNIOR AND ANOTHER v. LORENZO YIH AND OTHERS

JOSE MIRANDA DA COSTA JUNIOR AND ANOTHER v. LORENZO YIH AND OTHERS

Leave to appeal was refused because the strike-out application lacked a reasonable prospect of success: the plaintiff had pleaded an equitable proprietary interest in the shares entitling an account and fair value remedy; damages and indemnity claims were not plainly unsupportable; the application was opportunistic and without merit, warranting indemnity costs and procedural restrictions.

Citation
JOSE MIRANDA DA COSTA JUNIOR AND ANOTHER v. LORENZO YIH AND OTHERS
Parties
1st Plaintiff: JOSE MIRANDA DA COSTA JUNIOR; 2nd Plaintiff: MIRANDA GEMS E MINE LTDA; 1st Defendant: LORENZO YIH also known as YU CHUAN YIH; 2nd Defendant: PARAIBA LIMITED; 3rd Defendant: MIRANDA GEMS (HK) LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 January 2014
Case Number
HCMP2696/2013
Procedural Posture
Interlocutory Appeal (leave to Appeal Against Strike Out Refusal) / Court of Appeal Decision on Leave Application (determination on Papers)
Outcome
1st defendant's summons dismissed; leave to appeal refused; costs ordered on an indemnity basis in favour of the 1st plaintiff; procedural directions given.
Legal Topics
Strike Out, Leave to Appeal, Accounting by Trustee, Declaratory Relief, Repudiation, Fiduciary Duties, Indemnity Costs, Section 168 a Companies Ordinance
Source Language
EN
Civil Procedure Company Law Trusts and Equity Contract Law Strike Out Leave to Appeal Accounting by Trustee Declaratory Relief +4 more

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Parties

JOSE MIRANDA DA COSTA JUNIOR

1st Plaintiff

MIRANDA GEMS E MINE LTDA

2nd Plaintiff

LORENZO YIH also known as YU CHUAN YIH

1st Defendant

PARAIBA LIMITED

2nd Defendant

MIRANDA GEMS (HK) LIMITED

3rd Defendant

Procedural Posture

Interlocutory Appeal (leave to Appeal Against Strike Out Refusal) / Court of Appeal Decision on Leave Application (determination on Papers)

Legal Issues

  1. 1 Whether prayers (3)(a)-(e) should be struck out as disclosing no reasonable cause of action
  2. 2 Whether an account and fair value remedy is available where plaintiff primarily pleads breach of contract
  3. 3 Whether prayer for damages (3)(d) would result in double recovery given prayer (3)(c)

Ratio Decidendi

Leave to appeal was refused because the strike-out application lacked a reasonable prospect of success: the plaintiff had pleaded an equitable proprietary interest in the shares entitling an account and fair value remedy; damages and indemnity claims were not plainly unsupportable; the application was opportunistic and without merit, warranting indemnity costs and procedural restrictions.

Court Disposition

1st defendant's summons dismissed; leave to appeal refused; costs ordered on an indemnity basis in favour of the 1st plaintiff; procedural directions given.

Orders

  • Summons of the 1st defendant dismissed
  • Leave to appeal refused