PACIFIC ELECTRIC WIRE & CABLE CO LTD v. HARMUTTY LTD AND OTHERS

PACIFIC ELECTRIC WIRE & CABLE CO LTD v. HARMUTTY LTD AND OTHERS

Leave to appeal was refused because, although the scope of the fraud exception to Order 14 r 1(2)(b) is reasonably arguable and important, the Court was satisfied that there exist sufficient triable issues as to the plaintiff's proprietary claims against the corporate defendants to render the case unsuitable for summary disposal under Order 14; accordingly the application for leave was dismissed and costs were ordered against the applicant.

Citation
PACIFIC ELECTRIC WIRE & CABLE CO LTD v. HARMUTTY LTD AND OTHERS
Parties
Applicant/plaintiff: Pacific Electric Wire & Cable Company Limited; 1st Defendant / 1st Respondent (famv 28/2009; FAMV 31/2009; FAMV 33/2009): Harmutty Limited; 2nd Defendant / 2nd Respondent (famv 28/2009; FAMV 31/2009; FAMV 33/2009): Haddowe Limited; 3rd Defendant / Respondent: Casparson Properties Limited; Individual Defendant / Former Executive Director (alleged Fiduciary Breach): Hu Hung Chiu; Defendant / Respondent (multiple FAMV Matters): All Dragon International Limited; 1st Defendant / 1st Respondent (famv 30/2009; FAMV 32/2009): Gold Global Limited; 2nd Defendant / 2nd Respondent (famv 30/2009; FAMV 32/2009): PCL Nominees Limited; 19th Defendant / Respondent (famv Matters): Patagonia Limited; 1st Defendant / 1st Respondent (famv 29/2009): Texan Management Limited; 2nd Defendant / Respondent: Clipper Investment Limited (formerly Pacific Capital (Investment) Limited); 5th Defendant / Respondent: PCL Holdings Limited (formerly Pacific Capital (Holding))
Court
Court of Final Appeal
Jurisdiction
Hong Kong
Judgment Date
14 September 2009
Case Number
FAMV31/2009
Procedural Posture
Miscellaneous Proceedings — Application for Leave to Appeal From Court of Appeal (civil) / Determination on Application for Leave to Appeal (decision on Merits and Costs)
Outcome
Application for leave to appeal dismissed
Legal Topics
Summary Judgment, Order 14 R 1(2)(b) Fraud Exception, Proprietary Remedy and Tracing, Breach of Fiduciary Duty, Costs and Receivership Expenses
Source Language
EN
Company Law Equity Civil Procedure Trusts and Fiduciary Duties Appeal Law Summary Judgment Order 14 R 1(2)(b) Fraud Exception Proprietary Remedy and Tracing +2 more

Case Brief

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Parties

Pacific Electric Wire & Cable Company Limited

Applicant/plaintiff

Harmutty Limited

1st Defendant / 1st Respondent (famv 28/2009; FAMV 31/2009; FAMV 33/2009)

Haddowe Limited

2nd Defendant / 2nd Respondent (famv 28/2009; FAMV 31/2009; FAMV 33/2009)

Casparson Properties Limited

3rd Defendant / Respondent

Hu Hung Chiu

Individual Defendant / Former Executive Director (alleged Fiduciary Breach)

All Dragon International Limited

Defendant / Respondent (multiple FAMV Matters)

Gold Global Limited

1st Defendant / 1st Respondent (famv 30/2009; FAMV 32/2009)

PCL Nominees Limited

2nd Defendant / 2nd Respondent (famv 30/2009; FAMV 32/2009)

Patagonia Limited

19th Defendant / Respondent (famv Matters)

Texan Management Limited

1st Defendant / 1st Respondent (famv 29/2009)

Clipper Investment Limited (formerly Pacific Capital (Investment) Limited)

2nd Defendant / Respondent

PCL Holdings Limited (formerly Pacific Capital (Holding))

5th Defendant / Respondent

Procedural Posture

Miscellaneous Proceedings — Application for Leave to Appeal From Court of Appeal (civil) / Determination on Application for Leave to Appeal (decision on Merits and Costs)

Legal Issues

  1. 1 Whether Order 14 r 1(2)(b) excludes summary judgment where the plaintiff's claim for proprietary relief necessarily involves allegations of fraud against third parties
  2. 2 Whether the fraud exception in Order 14 r 1(2)(b) should be confined to common law deceit as in Derry v Peek
  3. 3 Whether the plaintiff's claims against the corporate defendants raise triable issues making Order 14 inappropriate

Ratio Decidendi

Leave to appeal was refused because, although the scope of the fraud exception to Order 14 r 1(2)(b) is reasonably arguable and important, the Court was satisfied that there exist sufficient triable issues as to the plaintiff's proprietary claims against the corporate defendants to render the case unsuitable for summary disposal under Order 14; accordingly the application for leave was dismissed and costs were ordered against the applicant.

Court Disposition

Application for leave to appeal dismissed

Orders

  • Leave to appeal refused
  • Order nisi that the applicant pay the costs of the respondents (including expenses incurred by reason of receivers appointment)