JOSE MIRANDA DA COSTA JUNIOR AND ANOTHER v. LORENZO YIH AND OTHERS

JOSE MIRANDA DA COSTA JUNIOR AND ANOTHER v. LORENZO YIH AND OTHERS

Lorenzo's affidavit (Lorenzo 3) was found to be false, illusory and wilfully defective; his explanations (listed status, privatisation, third party refusal) were implausible or ex post facto and did not excuse non-compliance; documentary evidence supported that the requested documents were within Lorenzo's control; his non-compliance was deliberate and in bad faith; accordingly the court struck out his defence and entered judgment for Miranda, granted the declarations sought regarding repudiation and 50% beneficial ownership, ordered relief as per draft paragraphs and awarded costs on an indemnity basis; a declaration was also made against Paraiba.

Citation
JOSE MIRANDA DA COSTA JUNIOR AND ANOTHER v. LORENZO YIH AND OTHERS
Parties
1st Plaintiff: JOSE MIRANDA DA COSTA JUNIOR; 2nd Plaintiff: MIRANDA GEMS E MINE LTDA; 1st Defendant: LORENZO YIH (also known as YU CHUAN YIH); 2nd Defendant: PARAIBA LIMITED; 3rd Defendant: MIRANDA GEMS (HK) LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 February 2014
Case Number
HCA156/2010
Procedural Posture
Civil Discovery and Enforcement of Unless Order; Claim for Declarations, Account and Damages / Application for Judgment Following Breach of an Unless Order; Decision on Strike Out and Entry of Judgment
Outcome
Defence of 1st defendant (Lorenzo) struck out; judgment entered for 1st plaintiff (Miranda); declarations granted; orders for account/relief to follow as per draft; costs on indemnity basis; declaration against Paraiba that it held one issued share on trust for Miranda
Legal Topics
Unless Order, Strike Out of Defence, Specific Discovery, Affidavit Conclusiveness, Beneficial Ownership, Electronic Evidence, Indemnity Costs
Source Language
EN
Civil Procedure Discovery Companies Law Trusts Partnerships Evidence Unless Order Strike Out of Defence +5 more

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Parties

JOSE MIRANDA DA COSTA JUNIOR

1st Plaintiff

MIRANDA GEMS E MINE LTDA

2nd Plaintiff

LORENZO YIH (also known as YU CHUAN YIH)

1st Defendant

PARAIBA LIMITED

2nd Defendant

MIRANDA GEMS (HK) LIMITED

3rd Defendant

Procedural Posture

Civil Discovery and Enforcement of Unless Order; Claim for Declarations, Account and Damages / Application for Judgment Following Breach of an Unless Order; Decision on Strike Out and Entry of Judgment

Legal Issues

  1. 1 Whether the defendant complied with the unless order and whether his affidavit (Lorenzo 3) was false, illusory or wilfully defective
  2. 2 Whether LJI's listed status lawfully prevented discovery of corporate emails
  3. 3 Whether the MGHK minutes and Paraiba registers were within the defendant's possession, custody or power

Ratio Decidendi

Lorenzo's affidavit (Lorenzo 3) was found to be false, illusory and wilfully defective; his explanations (listed status, privatisation, third party refusal) were implausible or ex post facto and did not excuse non-compliance; documentary evidence supported that the requested documents were within Lorenzo's control; his non-compliance was deliberate and in bad faith; accordingly the court struck out his defence and entered judgment for Miranda, granted the declarations sought regarding repudiation and 50% beneficial ownership, ordered relief as per draft paragraphs and awarded costs on an indemnity basis; a declaration was also made against Paraiba.

Court Disposition

Defence of 1st defendant (Lorenzo) struck out; judgment entered for 1st plaintiff (Miranda); declarations granted; orders for account/relief to follow as per draft; costs on indemnity basis; declaration against Paraiba that it held one issued share on trust for Miranda

Orders

  • Strike out the defence of the 1st defendant (Lorenzo Yih) and enter judgment for the 1st plaintiff (Jose Miranda da Costa Junior)
  • Declaration that the 1st defendant wrongfully repudiated the agreement and that the 1st plaintiff accepted that repudiation and is not liable for conduct of MGHK on or after 5 November 2009