Hong Kong Case Law: Decisions & Judgments

Topic

Best endeavours obligation

Legal area

Court

1 Feb 2021

DELCO PARTICIPATION B.V. v. HWH HOLDINGS LTD

Citation

[2021] HKCFI 265
Court

Court of First Instance
Case number

HCA2943/2015

The court declined to order expert evidence on Delco's proposed question 3A (market steps and practice for procuring a buyer for the CB) because the proposed evidence did not show a recognised body of specialised knowledge, risked making assumptions, was unnecessary for the court to determine the contractual standard of 'best endeavours', and would have little probative value. The court granted the specified forensic accounting and financial instruments valuation expert directions set out in the judgment, ordered costs of expert directions to be costs in the cause, and adjourned the third par…
1 Feb 2021

DELCO PARTICIPATION B.V. v. CHIHO ENVIRONMENTAL GROUP LTD AND ANOTHER

Citation

[2021] HKCFI 265
Court

Court of First Instance
Case number

HCA3040/2015

The court directed forensic accounting and valuation expert evidence on specified questions but refused Delco's proposed question 3A on market practice because the proposed evidence was not shown to be within a reliable expert field, was unnecessary for contractual interpretation of the best endeavours obligation, and would not materially assist the court; costs of the expert directions were ordered in the cause and the third‑party disclosure application against USUMHK was adjourned with directions for affirmations and submissions.
1 Feb 2021

DELCO PARTICIPATION B.V. v. CHIHO ENVIRONMENTAL GROUP LTD AND OTHERS

Citation

[2021] HKCFI 265
Court

Court of First Instance
Case number

HCA2939/2016

The court refused Delco's proposed expert question on market practice for procuring a buyer for the CB (question 3A) because the proposed evidence did not fall within a recognised body of expert knowledge likely to assist the court, was unnecessary to decide the contractual issue of best endeavours and would have limited probative value; other expert directions as set out were ordered and costs of the related summonses were ordered in the cause; third party disclosure applications were adjourned to permit CT and USUMHK to file affidavits and submissions.
8 Aug 2017

HIGH FASHION NEW MEDIA CORPORATION LTD v. LEONG MA LI

Citation

HIGH FASHION NEW MEDIA CORPORATION LTD v. LEONG MA LI
Court

Court of First Instance
Case number

HCMP108/2016

The court found beyond reasonable doubt that Leong, who knew the terms of the injunction and undertaking and had the power and responsibility as Longford's legal representative, deliberately and voluntarily dealt with the Capital Account in breach of the specified signing arrangement (multiple transfers to Current Account, fixed deposits and third parties) and failed to use her best endeavours to procure and produce the Longford ICBC bank statements within the 14 day period; impossibility, mistake of fact and triviality defences were rejected; fixed deposit maturities mostly did not amount to…
8 Aug 2017

HIGH FASHION NEW MEDIA CORPORATION LTD v. LEONG MA LI

Citation

HIGH FASHION NEW MEDIA CORPORATION LTD v. LEONG MA LI
Court

Court of First Instance
Case number

HCMP1707/2016

On the evidence the defendant, Leong, had knowledge of the injunction and the undertaking and, notwithstanding available alternatives (including applying to the court), intentionally and voluntarily authorised or permitted 18 transfers and other transactions that constituted dealings with the Capital Account in breach of the injunction and failed to use her best endeavours to produce the Longford bank statements within the 14 day period; defences of impossibility, lack of possession, mistake of fact and triviality were rejected and she is therefore guilty of contempt of court.
2 Sept 2014

ROH CHUNG HYUN v. KOREA EXCHANGE BANK, HONG KONG BRANCH AND ANOTHER

Citation

ROH CHUNG HYUN v. KOREA EXCHANGE BANK, HONG KONG BRANCH AND ANOTHER
Court

Court of First Instance
Case number

HCA598/2014

The court found a serious issue to be tried on whether the banks breached an implied obligation to use best endeavours to secure a variation order, concluded damages would be an inadequate remedy for unlisted company shares, rejected the contention that specific performance is inevitably inappropriate, found no irreparable prejudice to the banks that continuation of the injunction could not compensate, and therefore continued the interim injunction pending final determination.
24 Dec 2012

HONG JING CO LTD v. ZHUHAI KWOK YUEN INVESTMENT CO LTD

Citation

HONG JING CO LTD v. ZHUHAI KWOK YUEN INVESTMENT CO LTD
Court

Court of Appeal
Case number

CACV63/2011

Leave to appeal to the Court of Final Appeal is refused: the plaintiff's claim for an account of profits is unliquidated and thus does not qualify as of right under s.22(1)(a), and the 'or otherwise' limb under s.22(1)(b) is not satisfied because a retrial does not produce grievous injustice or raise issues of great general or public importance; the defendant's applications for extension and leave are also refused and the retrial ordered by the Court of Appeal remains to proceed.
19 Sept 2012

HONG JING CO LTD v. ZHUHAI KWOK YUEN INVESTMENT CO LTD

Citation

HONG JING CO LTD v. ZHUHAI KWOK YUEN INVESTMENT CO LTD
Court

Court of Appeal
Case number

CACV254/2011

The defendant was bound by a contractual and fiduciary obligation to use best or reasonable endeavours in good faith and breached that obligation by delaying and failing to approach BOCGI expeditiously; asset proof was not a condition precedent; plaintiff did not waive breaches nor failed to mitigate as not pleaded; Hong Kong law governs the MOU; accordingly, costs were allocated between the parties and proceedings as quantified by the Court of Appeal.
9 Feb 2007

SIEGFRIED ADALBERT UNRUH v. HANS-JOERG SEEBERGER AND ANOTHER

Citation

SIEGFRIED ADALBERT UNRUH v. HANS-JOERG SEEBERGER AND ANOTHER
Court

Court of Final Appeal
Case number

FACV9/2006

Clause 5 of the MoA, read in its commercial context, makes Mr Seeberger personally liable to pay the Special Bonus if Egana does not pay within 28 days of ESCT receiving monetary compensation exceeding US$10 million (failure to pay for any reason triggers the proviso); the MoA covers the arbitration and related proceedings so the global settlement fell within its scope; the best endeavours clause is not a condition precedent to bonus entitlement; the MoA is not champertous given respondent's genuine commercial interest and public policy considerations; however, there was insufficient evidence…
7 Oct 2005

SIEGFRIED ADALBERT UNRUH v. HANS-JOERG SEEBERGER AND ANOTHER

Citation

SIEGFRIED ADALBERT UNRUH v. HANS-JOERG SEEBERGER AND ANOTHER
Court

Court of Appeal
Case number

CACV297/2004

Majority held on construction that clause 5 imposed liability on the 1st defendant to pay the special bonus if the 2nd defendant did not pay; the global settlement was monetary compensation arising from the arbitration; plaintiff had used his best endeavours; the 2nd defendant was bound to pay the special bonus by virtue of the Deed of Acknowledgement and related conduct (estoppel/assent) and accordingly the trial judgment in favor of the plaintiff was upheld (appeals dismissed).