FENN KAR BAK LILY AND OTHERS v. SO SHIU TSUNG THOMAS AND ANOTHER

FENN KAR BAK LILY AND OTHERS v. SO SHIU TSUNG THOMAS AND ANOTHER

The pleaded allegations against the arbitrator were demonstrably without factual foundation or were legally untenable, amounted to scandalous, frivolous and vexatious pleadings and an abuse of process; therefore both Statements of Claim were plain and obvious cases for striking out and both District Court actions were dismissed in their entirety; interlocutory applications (injunction and consolidation) were dismissed as academic; costs to be determined on paper.

Citation
[2021] HKDC 719
Parties
Plaintiff (dccj 2047/2020); 1st Plaintiff (dccj 220/2021): FENN KAR BAK LILY; Defendant (dccj 2047/2020); 1st Defendant (dccj 220/2021): SO SHIU TSUNG THOMAS; 2nd Plaintiff (dccj 220/2021): TSE TO CHUEN; 3rd Plaintiff (dccj 220/2021): LEUNG WUN MAN EMBA; 2nd Defendant (dccj 220/2021): AU SIU HONG TONY
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
16 June 2021
Case Number
DCCJ220/2021
Procedural Posture
Civil (district Court) — Arbitration Related Claims / Decision on Striking Out Summonses and Interlocutory Applications (summary Disposal)
Outcome
Both Statements of Claim struck out and both District Court actions dismissed in their entirety; Interlocutory injunction and consolidation summonses dismissed; costs to be determined on paper with submissions ordered
Legal Topics
Striking Out, Conflict of Interest, Natural Justice, Abuse of Process, Adoption of Statutory Arbitration Regime (schedule 2), Costs (indemnity), Interim Injunction
Source Language
EN
Arbitration Civil Procedure Contract Law Judicial Review Striking Out Conflict of Interest Natural Justice Abuse of Process +3 more

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Parties

FENN KAR BAK LILY

Plaintiff (dccj 2047/2020); 1st Plaintiff (dccj 220/2021)

SO SHIU TSUNG THOMAS

Defendant (dccj 2047/2020); 1st Defendant (dccj 220/2021)

TSE TO CHUEN

2nd Plaintiff (dccj 220/2021)

LEUNG WUN MAN EMBA

3rd Plaintiff (dccj 220/2021)

AU SIU HONG TONY

2nd Defendant (dccj 220/2021)

Procedural Posture

Civil (district Court) — Arbitration Related Claims / Decision on Striking Out Summonses and Interlocutory Applications (summary Disposal)

Legal Issues

  1. 1 Whether the Statements of Claim disclose a realistic cause of action or are plain and obvious abuses to be struck out
  2. 2 Whether the arbitrator relied on confidential documents disclosed without leave and thereby breached duties/acted dishonestly
  3. 3 Whether the arbitrator breached the rule of natural justice by denying opportunity to be heard

Ratio Decidendi

The pleaded allegations against the arbitrator were demonstrably without factual foundation or were legally untenable, amounted to scandalous, frivolous and vexatious pleadings and an abuse of process; therefore both Statements of Claim were plain and obvious cases for striking out and both District Court actions were dismissed in their entirety; interlocutory applications (injunction and consolidation) were dismissed as academic; costs to be determined on paper.

Court Disposition

Both Statements of Claim struck out and both District Court actions dismissed in their entirety; Interlocutory injunction and consolidation summonses dismissed; costs to be determined on paper with submissions ordered

Orders

  • 1. Allow the 1st and 2nd striking out summonses and strike out the Statement of Claim in DCCJ 2047/2020 (1st Action) as scandalous, frivolous and vexatious and an abuse of process.
  • 2. Strike out the Statement of Claim in DCCJ 220/2021 (2nd Action) in its entirety as scandalous, frivolous and vexatious and an abuse of process and dismiss the 2nd Action against both Mr So and Mr Au.