HANS-JUERGEN BOEWE v. ROLAND JOHN JEANS AND ANOTHER

HANS-JUERGEN BOEWE v. ROLAND JOHN JEANS AND ANOTHER

On the pleadings and available evidence the court found the re-amended statement of claim disclosed triable causes of action: prima facie the plaintiffs were not shareholders as pleaded, there was a sufficiently pleaded total failure of consideration, a cause of action for wrongful conversion/misappropriation was adequately pleaded, and the facts as pleaded supported a resulting/Quistclose/constructive trust claim against the 2nd defendant. The retainer letter and draft shareholders agreement did not, on the material before the court, meet the high threshold for striking out under Order 18 Rule 19 or the court's inherent jurisdiction.

Citation
HANS-JUERGEN BOEWE v. ROLAND JOHN JEANS AND ANOTHER
Parties
Plaintiff: William Thomson; Plaintiff: Hans-Juergen Boewe; 1st Defendant: Roland John Jeans; 2nd Defendant: Tanner De Witt (a firm)
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
28 November 2012
Case Number
DCCJ3389/2005
Procedural Posture
Civil Action — Interlocutory Strike Out Application / Amended Summons to Strike Out Under Order 18 Rule 19 (interlocutory)
Outcome
Amended Summonses dismissed in their entirety
Legal Topics
Strike Out, Failure of Consideration, Conversion and Misappropriation, Constructive Trust / Quistclose Trust, Pleadings and Particulars, Retainer Obligations
Source Language
EN
Civil Procedure Trusts and Equity Company Law Contract Law Strike Out Failure of Consideration Conversion and Misappropriation Constructive Trust / Quistclose Trust +2 more

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Parties

William Thomson

Plaintiff

Hans-Juergen Boewe

Plaintiff

Roland John Jeans

1st Defendant

Tanner De Witt (a firm)

2nd Defendant

Procedural Posture

Civil Action — Interlocutory Strike Out Application / Amended Summons to Strike Out Under Order 18 Rule 19 (interlocutory)

Legal Issues

  1. 1 Whether the re-amended statement of claim disclosed a reasonable cause of action against the 2nd defendant
  2. 2 Whether the claims were frivolous or vexatious warranting strike out under Order 18 Rule 19(1)(b) or the court's inherent jurisdiction
  3. 3 Whether there was a total failure of consideration entitling recovery of subscription monies

Ratio Decidendi

On the pleadings and available evidence the court found the re-amended statement of claim disclosed triable causes of action: prima facie the plaintiffs were not shareholders as pleaded, there was a sufficiently pleaded total failure of consideration, a cause of action for wrongful conversion/misappropriation was adequately pleaded, and the facts as pleaded supported a resulting/Quistclose/constructive trust claim against the 2nd defendant. The retainer letter and draft shareholders agreement did not, on the material before the court, meet the high threshold for striking out under Order 18 Rule 19 or the court's inherent jurisdiction.

Court Disposition

Amended Summonses dismissed in their entirety

Orders

  • Amended Summonses dismissed
  • Costs nisi: costs of and incidental to the Amended Summonses to the plaintiffs forthwith with a certificate for counsel