Hong Kong Case Law: Decisions & Judgments

Topic

Derivative proceedings

Legal area

Court

9 Nov 2020

PACIFIC BULK INVESTMENT LTD v. CHU KONG AND OTHERS

Citation

[2020] HKCFI 2825
Court

Court of First Instance
Case number

HCA379/2019

The Court continued the proprietary injunction until trial or further order because there remained a serious issue to be tried that PBI owned equitable interests in the Huiyu shares and proceeds and because the defendants' continued control of PBI created a real risk of misappropriation if the injunction were discharged; the Court granted leave for Smart City to transfer the Huiyu shares and specified proceeds to PBI but only with protections and directed that defendants initially bear transfer costs; costs of the Continuation and Transfer Summonses were awarded to PBI.
24 Jun 2020

POON KA MAN JASON v. CHENG WAI TAO AND OTHERS

Citation

[2020] HKCFI 1327
Court

Court of First Instance
Case number

HCA304/2011

D1 authorised and approved the Company’s active opposition; delegation to Fung did not absolve D1 of responsibility; the proceedings were in substance a shareholders' dispute where the company should have remained nominal so its unnecessary participation improperly expended company funds; therefore D1 must personally bear the Company’s costs of the January Summons and the costs of the application, with certificate for counsel; application allowed on that basis.
12 Jun 2017

LEUNG TUNG HOI AND ANOTHER v. LAI YIP DYEING FACTORY LTD AND OTHERS

Citation

LEUNG TUNG HOI AND ANOTHER v. LAI YIP DYEING FACTORY LTD AND OTHERS
Court

Court of Appeal
Case number

CACV54/2015

The judge erred by delving into contested evidence and effectively determining merits on the papers; on a leave application under s168BC the correct approach is to ask whether there is a serious question to be tried, not to resolve disputes of fact; on the material before the court there were arguable claims of misappropriation, conspiracy and dishonest assistance against the 2nd to 5th respondents and a tenable claim against the 3rd and 4th respondents that warranted permitting the derivative proceedings to proceed.
17 Jun 2014

GRAND FIELD GROUP HOLDINGS LTD v. CHU KING FAI AND OTHERS

Citation

GRAND FIELD GROUP HOLDINGS LTD v. CHU KING FAI AND OTHERS
Court

Court of First Instance
Case number

HCA771/2009

Claims dismissed: plaintiff failed to prove bribery or that Yuan Cheng was unlawfully incorporated or that the HK$50m remittance was wrongful; contemporaneous documents and credible testimony (notably 3rd and 7th defendants) established lawful board authorisation and bona fide commercial purposes; serious allegations lacked cogent evidence and relied on hearsay; s358 relief not applicable to defendants in these circumstances; therefore no breach of fiduciary duty established.
31 Dec 2013

SZE CHING LOK AND OTHERS v. CHINA RESOURCES POWER HOLDINGS COMPANY LTD

Citation

SZE CHING LOK AND OTHERS v. CHINA RESOURCES POWER HOLDINGS COMPANY LTD
Court

Court of First Instance
Case number

HCMP1655/2013

The court found that the 1st applicant's 2nd affirmation contained several new complaints and factual matters (including alleged prepayments, additional loan undertakings, Datong default claims, production delay losses, irregularities in permit renewals and alleged overpayment figures) that were not pleaded in the originating summons or draft statement of claim; such matters could not be admitted as evidence in reply because they would unfairly ambush the respondent, and accordingly the respondent's application to expunge the contested paragraph(s) was allowed.
7 Jun 2013

DAVID CHIEN v. FRANCIS CHEUNG AND OTHERS

Citation

DAVID CHIEN v. FRANCIS CHEUNG AND OTHERS<br>
Court

Court of First Instance
Case number

HCMP2892/2012

There was a serious question to be tried that the directors approved a disposal of the company's principal asset at an undervalue and in breach of their fiduciary duties, the plaintiff (having become a registered member) was entitled to interlocutory relief, and an interim quia timet injunction should be granted restraining completion of the sale pending determination of the leave application under s168BC or further order.
15 Jun 2012

A R EVANS CAPITAL PARTNERS LTD v. NOVEL ALTERNATIVE INVESTMENT LTD AND OTHERS

Citation

A R EVANS CAPITAL PARTNERS LTD v. NOVEL ALTERNATIVE INVESTMENT LTD AND OTHERS
Court

Court of First Instance
Case number

HCMP1991/2011

The Court held Gen2 Partners Inc had established a place of business in Hong Kong and thus was a 'specified corporation'; AR Evans was granted leave under s168BC to intervene to defend the High Court Action and to bring specified derivative claims on behalf of the company (subject to limitation excluding a money had and received claim), Novel and Lau were permitted to oppose the s168BC application, the s168A petition was struck out because most claims pleaded were inappropriate for a s168A petition but AR Evans was given leave to apply to amend limited to matters supporting a buy-out order, a…
15 Jun 2012

A R EVANS CAPITAL PARTNERS LTD v. GEN2 PARTNERS INC

Citation

A R EVANS CAPITAL PARTNERS LTD v. GEN2 PARTNERS INC
Court

Court of First Instance
Case number

HCMP1255/2011

The court held the BVI company had established a place of business in Hong Kong and therefore was a 'specified corporation' under the Ordinance; accordingly AR Evans, as a member, was entitled to seek leave under s168BC. Leave was granted to intervene and defend the High Court Action and to bring derivative claims on behalf of the Company in respect of breaches of the shareholders' agreement and breaches of fiduciary/directors' duties (but not for money had and received). The court dispensed with the s168BD notice requirement and declined to make provision of security a precondition to grant…
16 Mar 2012

LU JUN v. YU QI AND OTHERS

Citation

LU JUN v. YU QI AND OTHERS
Court

Court of First Instance
Case number

HCCW282/2010

Application for further security was dismissed because the petitioner, though resident abroad, has a valuable Hong Kong asset (15% shareholding in the company) from which costs can be recouped (by sale, dividend, charging order or offset against buy-out price), so security is not necessary; delay and excessive quantum supported refusal.
21 Nov 2008

KING FUNG CONSTRUCTION WORK CO LTD v. YIP KWAI CHOR AND ANOTHER

Citation

KING FUNG CONSTRUCTION WORK CO LTD v. YIP KWAI CHOR AND ANOTHER
Court

Court of Appeal
Case number

CACV54/2008

The Court of Appeal refused to disturb the recorder's credibility-based factual findings because they were not plainly wrong: the recorder correctly found a 50:50 profit understanding, that the five payments were not recoverable loans, that back-to-back subcontracts and certain debts by Sing Yip existed, that Lau misapplied funds and diverted the West Kowloon project for secret profit, and that removal of Yip was unfairly prejudicial; accordingly the recorder's orders (valuation and repayment directions and judgment against Sing Yip) stand and the appeals are dismissed.