CHAN LAP KIT t/a NGAN FUNG EXCHANGE CO also t/a RELIABLE RMB REMITTANCE CO AND ANOTHER v. YUSHUN TECHNOLOGY LTD

CHAN LAP KIT t/a NGAN FUNG EXCHANGE CO also t/a RELIABLE RMB REMITTANCE CO AND ANOTHER v. YUSHUN TECHNOLOGY LTD

The Intervener established a proprietary claim to the attached funds: the HCA 1023 default judgment operated to deem the pleaded facts admitted and declared the defaulting defendants (including the defendant) held traceable proceeds on constructive trust; the Account is an integrated dual‑currency account treated as a single fund permitting tracing of the USD880,131 into the current total relationship balance; there was a reasonable ground to refuse to make the garnishee order nisi absolute, accordingly the plaintiffs' application was dismissed and the garnishee order nisi set aside.

Citation
CHAN LAP KIT t/a NGAN FUNG EXCHANGE CO also t/a RELIABLE RMB REMITTANCE CO AND ANOTHER v. YUSHUN TECHNOLOGY LTD
Parties
1st Plaintiff: CHAN LAP KIT trading as NGAN FUNG EXCHANGE COMPANY; 2nd Plaintiff: CHAN KIU MEI CANDY trading as NGAN FUNG EXCHANGE COMPANY; Defendant: YUSHUN TECHNOLOGY LIMITED; Garnishee: THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED; Intervener: BR.C.A.T. INTERNATIONAL CO. LTD.
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
24 January 2017
Case Number
DCCJ130/2016
Procedural Posture
Garnishee Proceedings / Substantive Hearing on Garnishee Order Nisi and Intervener Claim
Outcome
Plaintiffs' application to make the garnishee order nisi absolute dismissed; garnishee order nisi set aside
Legal Topics
Garnishee Order, Constructive Trust, Tracing, Default Judgment, Mareva Injunction, Costs
Source Language
EN
Civil Procedure Equity Trusts Banking Law Fraud Enforcement Garnishee Order Constructive Trust +4 more

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Parties

CHAN LAP KIT trading as NGAN FUNG EXCHANGE COMPANY

1st Plaintiff

CHAN KIU MEI CANDY trading as NGAN FUNG EXCHANGE COMPANY

2nd Plaintiff

YUSHUN TECHNOLOGY LIMITED

Defendant

THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED

Garnishee

BR.C.A.T. INTERNATIONAL CO. LTD.

Intervener

Procedural Posture

Garnishee Proceedings / Substantive Hearing on Garnishee Order Nisi and Intervener Claim

Legal Issues

  1. 1 Whether the garnishee order nisi should be made absolute
  2. 2 Whether the Intervener has a proprietary interest in the funds by virtue of HCA 1023 default judgment
  3. 3 Whether the plaintiffs’ earlier service of the garnishee order nisi ranks in priority to HCA 1023 judgment

Ratio Decidendi

The Intervener established a proprietary claim to the attached funds: the HCA 1023 default judgment operated to deem the pleaded facts admitted and declared the defaulting defendants (including the defendant) held traceable proceeds on constructive trust; the Account is an integrated dual‑currency account treated as a single fund permitting tracing of the USD880,131 into the current total relationship balance; there was a reasonable ground to refuse to make the garnishee order nisi absolute, accordingly the plaintiffs' application was dismissed and the garnishee order nisi set aside.

Court Disposition

Plaintiffs' application to make the garnishee order nisi absolute dismissed; garnishee order nisi set aside

Orders

  • Dismissal of plaintiffs' application to make garnishee order nisi absolute
  • Garnishee order nisi set aside