COQUEEN CO LTD v. CHUI WAI KWAN AND OTHERS

COQUEEN CO LTD v. CHUI WAI KWAN AND OTHERS

The court found the sale to Leading Win was not a settlement between Coqueen and Hing and that circumstances (notably Coqueen's change from seeking a discount for unfair prejudice to accepting a conventional minority discount and the identical unit price paid for all siblings' shares) constituted an acknowledgment of likely defeat. Coqueen failed to discharge the burden to show a proper basis to depart from the general rule; accordingly Coqueen must pay Hing's costs of the petition and costs of the summonses as ordered.

Citation
COQUEEN CO LTD v. CHUI WAI KWAN AND OTHERS
Parties
Petitioner: Coqueen; 1st Respondent: Wai; 2nd Respondent: Hing; 3rd Respondent: The Company
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 December 2015
Case Number
HCMP438/2010
Procedural Posture
Section 168 a Petition (shareholder Unfair Prejudice / Buy Out Petition) / Interlocutory — Applications for Withdrawal and Strike Out and Costs Hearing
Outcome
Withdrawal of petition granted but costs awarded to 2nd Respondent (Hing); Strike-out summons withdrawn with costs to 2nd Respondent; Petitioner to pay costs of petition and of both applications on party and party basis (certificates for two counsel) to be taxed if not agreed.
Legal Topics
Unfairly Prejudicial Conduct, Petition for Buy Out of Shares, Withdrawal/discontinuance, Costs Orders, Abuse of Process, Strike Out
Source Language
EN
Company Law Civil Procedure Costs Law Equity Unfairly Prejudicial Conduct Petition for Buy Out of Shares Withdrawal/discontinuance Costs Orders +2 more

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Parties

Coqueen

Petitioner

Wai

1st Respondent

Hing

2nd Respondent

The Company

3rd Respondent

Procedural Posture

Section 168 a Petition (shareholder Unfair Prejudice / Buy Out Petition) / Interlocutory — Applications for Withdrawal and Strike Out and Costs Hearing

Legal Issues

  1. 1 Whether the sale of Hing's shares constituted a settlement of the petition between Coqueen and Hing
  2. 2 Whether Coqueen obtained substantially the relief sought such that it is entitled to costs
  3. 3 Whether the court can and should determine costs on the available factual basis or should make no order

Ratio Decidendi

The court found the sale to Leading Win was not a settlement between Coqueen and Hing and that circumstances (notably Coqueen's change from seeking a discount for unfair prejudice to accepting a conventional minority discount and the identical unit price paid for all siblings' shares) constituted an acknowledgment of likely defeat. Coqueen failed to discharge the burden to show a proper basis to depart from the general rule; accordingly Coqueen must pay Hing's costs of the petition and costs of the summonses as ordered.

Court Disposition

Withdrawal of petition granted but costs awarded to 2nd Respondent (Hing); Strike-out summons withdrawn with costs to 2nd Respondent; Petitioner to pay costs of petition and of both applications on party and party basis (certificates for two counsel) to be taxed if not agreed.

Orders

  • Re-Amended Petition against the 2nd Respondent withdrawn with costs to the 2nd Respondent including all reserved costs and costs in the cause, to be paid by the Petitioner on party and party basis, to be taxed if not agreed
  • Paragraphs 2 and 3 of the Petitioner\u2019s Withdrawal Summons dismissed