HONG KONG NIIROKU LTD. v. KYOKUTO SECURITIES (ASIA) LTD.

HONG KONG NIIROKU LTD. v. KYOKUTO SECURITIES (ASIA) LTD.

The application to strike out was dismissed because the defendant's re-re-amended defence and the challenged counterclaim paragraphs raised arguable issues — including whether the managing director's acts and knowledge are attributable to the plaintiff either as agent or as the company's directing mind and will —...

Source-derived case information.

Citation
HONG KONG NIIROKU LTD. v. KYOKUTO SECURITIES (ASIA) LTD.
Parties
Plaintiff (original Action): Hong Kong Niiroku Limited; Defendant (original Action); Plaintiff (by Counterclaim): Kyokuto Securities (Asia) Limited; Defendant (by Counterclaim): Bunzo Suzuki
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
18 March 2002
Case Number
HCA4122/2000
Procedural Posture
Civil Commercial Dispute (margin Trading, Contract, Tort, Conspiracy) / Interlocutory Strike Out Application — Judgment on Application to Strike Out Pleadings
Outcome
Application to strike out dismissed; re-re-amended defence and specified paragraphs of counterclaim not struck out; order nisi for costs in favour of defendant
Legal Topics
Strike Out Under Order 18 R.19 RHC, Margin Account Agreements, Conclusive Monthly Statements/estoppel, Agency, Directing Mind and Will (attribution), Conspiracy, Accounting for Shares, Mareva Injunction Evidence
Source Language
en
Civil Procedure Contract Tort Company Law Equity Criminal Law (conspiracy/ Fraud Aspects) Strike Out Under Order 18 R.19 RHC Margin Account Agreements +6 more

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Parties

Hong Kong Niiroku Limited

Plaintiff (original Action)

Kyokuto Securities (Asia) Limited

Defendant (original Action); Plaintiff (by Counterclaim)

Bunzo Suzuki

Defendant (by Counterclaim)

Procedural Posture

Civil Commercial Dispute (margin Trading, Contract, Tort, Conspiracy) / Interlocutory Strike Out Application — Judgment on Application to Strike Out Pleadings

Legal Issues

  1. 1 Whether the defendant's re-re-amended defence and specified paragraphs of the counterclaim are liable to be struck out as disclosing no reasonable ground or as an abuse of process
  2. 2 Whether the conspiracy pleaded involving the plaintiff, its managing director and a director of the defendant is sustainable
  3. 3 Whether acts and knowledge of the managing director (Suzuki Junior) can be attributed to the plaintiff company either as agent or as the company's directing mind and will

Ratio Decidendi

The application to strike out was dismissed because the defendant's re-re-amended defence and the challenged counterclaim paragraphs raised arguable issues — including whether the managing director's acts and knowledge are attributable to the plaintiff either as agent or as the company's directing mind and will — which cannot be determined as plain and obvious failures on an interlocutory strike out application; those issues require trial and the plaintiff failed to show the defendant is bound to fail.

Court Disposition

Application to strike out dismissed; re-re-amended defence and specified paragraphs of counterclaim not struck out; order nisi for costs in favour of defendant

Orders

  • Application dismissed
  • Order nisi for costs in favour of the defendant (Kyokuto Securities (Asia) Limited)