HO YUEN KI WINNIE AND ANOTHER v. HO HUNG SUN STANLEY AND OTHERS

HO YUEN KI WINNIE AND ANOTHER v. HO HUNG SUN STANLEY AND OTHERS

The petition was an abuse of process and must be struck out because the essence of the complaints is director misconduct seeking redress for the company; such relief is properly pursued by a derivative action (statutory or common law) or directly by the petitioners as STDM shareholders and not by an unfair prejudice petition under s.168A in the practical sense. Additionally, the Interdragon claim is barred by the Supplemental Agreement and is inconsistent with the petitioners' Macau proceedings, so those parts must be struck out.

Citation
HO YUEN KI WINNIE AND ANOTHER v. HO HUNG SUN STANLEY AND OTHERS
Parties
1st Petitioner: HO YUEN KI WINNIE; 2nd Petitioner: MUTUAL STAND LIMITED; 1st Respondent: HO HUNG SUN STANLEY; 2nd Respondent: HO CHIU KING PANSY CATILINA; 3rd Respondent: SO SHU FAI AMBROSE; 4th Respondent: SHUN TAK HOLDINGS LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 October 2009
Case Number
HCMP1377/2007
Procedural Posture
Companies Ordinance Petition (s.168 A) / Strike Out Application Decision
Outcome
petition struck out as an abuse of the process of the court
Legal Topics
Unfair Prejudice, Derivative Action, Abuse of Process, Strike Out Applications
Source Language
EN
Company Law Civil Procedure Unfair Prejudice Derivative Action Abuse of Process Strike Out Applications

Case Brief

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Parties

HO YUEN KI WINNIE

1st Petitioner

MUTUAL STAND LIMITED

2nd Petitioner

HO HUNG SUN STANLEY

1st Respondent

HO CHIU KING PANSY CATILINA

2nd Respondent

SO SHU FAI AMBROSE

3rd Respondent

SHUN TAK HOLDINGS LIMITED

4th Respondent

Procedural Posture

Companies Ordinance Petition (s.168 A) / Strike Out Application Decision

Legal Issues

  1. 1 Whether a s.168A unfair prejudice petition is an appropriate vehicle where the gist of the complaint is director misconduct rather than mismanagement
  2. 2 Whether the petition is an abuse of process by attempting to secure derivative relief without the derivative-action safeguards
  3. 3 Whether the court can order the company to procure Interdragon to bring a multiple derivative action against STDM given the Supplemental Agreement

Ratio Decidendi

The petition was an abuse of process and must be struck out because the essence of the complaints is director misconduct seeking redress for the company; such relief is properly pursued by a derivative action (statutory or common law) or directly by the petitioners as STDM shareholders and not by an unfair prejudice petition under s.168A in the practical sense. Additionally, the Interdragon claim is barred by the Supplemental Agreement and is inconsistent with the petitioners' Macau proceedings, so those parts must be struck out.

Court Disposition

petition struck out as an abuse of the process of the court

Orders

  • Petition struck out
  • Relevant paragraphs of the petition relating to the Interdragon issue and paragraph (2) of the prayer struck out