VIGERS HONG KONG LTD (in Creditors’ Voluntary Liquidation) v. MICHAEL ANDREW BARCLAY BINNEY AND OTHERS

VIGERS HONG KONG LTD (in Creditors’ Voluntary Liquidation) v. MICHAEL ANDREW BARCLAY BINNEY AND OTHERS

Allow the defendants to amend their Defence to plead industry/trade practice (trade practice) as to the Transfers, VH Payments and VAP Payments because the pleaded particulars (disposal of non‑profitable/non‑core assets and centralisation/reduction of costs) are sufficiently particularized and relevant to core issues; refuse to permit any pleading that purports to plead a binding 'custom' because the particulars lack the notoriety, certainty and universality required of a trade custom and are embarrassing; refuse leave for paragraph 42(3A) and its particulars because they are immaterial to the stated purpose of the Problematic Transactions; direct re‑filing of Amended Defence and Amended...

Citation
[2019] HKCFI 461
Parties
Plaintiff (in Creditors' Voluntary Liquidation): VIGERS HONG KONG LIMITED; 1st Defendant: MICHAEL ANDREW BARCLAY BINNEY; 2nd Defendant: KENNY WAI CHEUNG SUEN; 3rd Defendant: VIGERS NOMINEES LIMITED; 4th Defendant: VIGERS ASIA PACIFIC HOLDINGS LIMITED; 5th Defendant: RAYMOND HO KAI KWONG; 6th Defendant: CHRISTOPHER WING ON HO; 7th Defendant: VIGERS HOLDINGS LTD.; 8th Defendant: VIGERS ASIA PACIFIC LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 February 2019
Case Number
HCA744/2013
Procedural Posture
Civil – Company/insolvency Dispute (winding Up, Fiduciary Claims, Avoiding Transactions) / Appeal From Master Lam's Order Granting Leave to Amend Defence (decision on Pleading Amendments)
Outcome
Appeal allowed in part and dismissed in part: leave to amend refused insofar as (1) all references to 'custom' and (2) the addition of paragraph 42(3A) and its particulars; otherwise leave to amend to plead trade practice permitted.
Legal Topics
Trade Custom Vs Industry Practice, Amendment of Pleadings, Particularity of Pleadings, Fiduciary Duties, Fraudulent Disposition (conveyancing & Property Ordinance S.60), Unfair Preference
Source Language
EN
Company Law Insolvency Law Civil Procedure Equity Trade Custom Vs Industry Practice Amendment of Pleadings Particularity of Pleadings Fiduciary Duties +2 more

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Parties

VIGERS HONG KONG LIMITED

Plaintiff (in Creditors' Voluntary Liquidation)

MICHAEL ANDREW BARCLAY BINNEY

1st Defendant

KENNY WAI CHEUNG SUEN

2nd Defendant

VIGERS NOMINEES LIMITED

3rd Defendant

VIGERS ASIA PACIFIC HOLDINGS LIMITED

4th Defendant

RAYMOND HO KAI KWONG

5th Defendant

CHRISTOPHER WING ON HO

6th Defendant

VIGERS HOLDINGS LTD.

7th Defendant

VIGERS ASIA PACIFIC LIMITED

8th Defendant

Procedural Posture

Civil – Company/insolvency Dispute (winding Up, Fiduciary Claims, Avoiding Transactions) / Appeal From Master Lam's Order Granting Leave to Amend Defence (decision on Pleading Amendments)

Legal Issues

  1. 1 Whether the proposed averments and particulars constitute a recognised trade custom or usage requiring notoriety and certainty
  2. 2 Whether the proposed pleas are sufficiently particularised for fair notice and to avoid embarrassment
  3. 3 Whether the proposed pleading of 'trade practice' is relevant to core issues (breach of fiduciary duty and relief)

Ratio Decidendi

Allow the defendants to amend their Defence to plead industry/trade practice (trade practice) as to the Transfers, VH Payments and VAP Payments because the pleaded particulars (disposal of non‑profitable/non‑core assets and centralisation/reduction of costs) are sufficiently particularized and relevant to core issues; refuse to permit any pleading that purports to plead a binding 'custom' because the particulars lack the notoriety, certainty and universality required of a trade custom and are embarrassing; refuse leave for paragraph 42(3A) and its particulars because they are immaterial to the stated purpose of the Problematic Transactions; direct re‑filing of Amended Defence and Amended...

Court Disposition

Appeal allowed in part and dismissed in part: leave to amend refused insofar as (1) all references to 'custom' and (2) the addition of paragraph 42(3A) and its particulars; otherwise leave to amend to plead trade practice permitted.

Orders

  • Leave to amend refused insofar as all references to 'custom' and the addition of paragraph 42(3A) (and its particulars)
  • Defendants to re-file Amended Defence in accordance with the ruling within 14 days from date of handing down