RE THE PRUDENTIAL ENTERPRISE LTD

CACV 865/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 865 OF 2001

(ON APPEAL FROM HCCW 594 OF 1999)

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J U D G M E N T

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Hon. Cheung JA:

Application to strike out or stay petition

1. The Petitioners applied to wind up the Prudential Enterprise, Limited ("the Company") on just and equitable grounds. They alleged that the majority shareholder of the Company, namely, Samuel Tak Lee ("ST Lee") (the 1st Respondent) and his family had abused their position as directors and controlling shareholders of the Company and their conducts were oppressive and unfairly prejudicial to the Petitioners. They also asked for relief under s. 168A of the Companies Ordinance, which include, among other things, that ST Lee and his family should purchase the shares of the Petitioners in the Company.

2. ST Lee applied to strike out or stay the petition pursuant to O.18 R.19 of the Rules of the High Court, or alternatively under its inherent jurisdiction on the ground that the petition was an abuse of the process of the court. Chu J. dismissed the application. She further ordered, among other things, leave be granted the Petitioners to join HY & HT Lee Brothers & Company Limited ("HY & HT Lee") as one of the petitioners. ST Lee now appeals against the dismissal of his striking out application and the order joining HY & HT Lee.

The Petition

3. The Company was formed in 1958 by two cousins. The parties to this litigation are, in the main, the family members of these two cousins. HY & HT Lee is a company formed in 1929 by the fathers of these two cousins. In September 1995 the shareholdings of ST Lee and his family in the Company was only 5.78 percent. In December 1995 they were increased to 26.86 percent and by October 1998 their shareholdings reached 68.75 percent.

4. There are two main allegations against ST Lee by the Petitioners. First, he acquired control of the Company by devious means. Second, he has divested the assets of the Company for his personal purpose.

5. Briefly, the following are the background of the complaints. After taking control of the board of the Company in 1986, ST Lee deliberately adopted a policy of low dividend payment to the members. He hindered the transfer of shares by members. He withheld the payment of dividend due to deceased shareholders. He made it difficult, if not impossible, for members to obtain adequate information about the Company or its true worth by transferring the assets of the Company to companies incorporated in British Virgin Islands, notwithstanding the disapproval of shareholders. He presented uninformative or misleading accounts of the Company to members and refused to answer shareholders' enquiries. As a result of the hindrance to share transfers, litigations were commenced by its members to compel the Company to exercise the transfer of shares and for the payment of dividends.

6. Eventually a settlement agreement was reached on 26 September 1995 in which the Company agreed to register the transfer of shares and also for the purchase of a land property i.e. 5, Blue Pool Road from another family company. The consideration for the sale of this property was HK$108 million which was to be paid as to HK$60.48 million in cash and HK$47.52 million in the form of 1,357 new shares in the Company. These shares were eventually allotted to ST Lee and his family in December 1995. These shares were grossly undervalued. The shares were said to worth about $35,018 per share whereas their true value was at $549,340 per share. By acquiring this 1,357 shares ST Lee had secured substantial benefits to himself at the expense of other shareholders.

7. Between 1995 and 1998 there was a series of litigations between the family members. On 17 October 1998 the Company informed the shareholders that the board had decided to pay a special dividend of HK$44,600 per ordinary share and at the same time made an open offer to subscribe for 8,126 new ordinary shares at HK$31,721 per share ("the Rights Issue"). Deadline for the shareholders to subscribe to the open offer was ten days from the date of the document. Due to the shortage of time for the other shareholders to respond to this subscription, the entire issue of 8,126 new ordinary shares were allotted to ST Lee, his family and his nominee company. This allotment enabled ST Lee to acquire the controlling interest in the Company. The fund used by ST Lee to subscribe for the new shares in fact belonged to the Company.

8. ST Lee had divested the Company's assets to a company called Interstitial Holdings Limited ("Interstitial"). The source of funds used by ST Lee to acquire the new shares in the Rights Issue came from Interstitial. Interstitial is a company owned and controlled by ST Lee. He had caused the Company to invest a total of HK$789.52 million in Interstitial as of 31 January 1998. The initial investment in 1994 was HK$174.7 million. This was later increased in 1997 to HK$547 million (representing over 57 percent of the total shareholders' funds of HK$953 million) and eventually the amount was increased to HK$789.52 million.

9. It is also alleged by the Petitioners that ST Lee had also divested the funds of the Company to a company called Wyatt Estates Limited ("Wyatt").

The derivative action

10. The Petitioners had commenced a derivative action in HCA No. 1240 of 2001 against ST Lee and his family seeking, among other things, a declaration that they had misappropriated HK$789.92 million from the Company and also rescission of the issue of 8,126 shares to ST Lee and his family.

Basis of the striking out application

11. The basis of the striking out application is that ST Lee had made an open offer to the Petitioners to acquire their shares. The offer gave them all they could reasonably expect to obtain on the petition, if successful and they had unreasonably refused to accept the offer.

The offer

12. The principal features of the offer together with its revised terms are set out in the judgment of Chu J. and they are as follows :

（1） ST Lee offers to purchase or procure the purchase of the Petitioners' shares at a value to be determined by an independent valuer from a chartered accountant firm of international standing : paragraph 1.

（2） The valuer is to act as an expert and not as arbitrator, and his decision and valuation are final and binding : paragraphs 7, 13 and 19.

（3） The valuer shall not give reasons for his determination on the valuation : paragraphs 12 and 18.

（4） The method of valuation is for the valuer to determine in his discretion : paragraph 15.

（5） The parties are entitled to make submissions to the valuer as required by the valuer : paragraph 8.

（6） The valuer will have free access to every book and record of the Company. If the valuer requires submissions from the parties on any point affecting the value of the Petitioners' shares, the Company shall provide to the parties the information relevant to the point. An independent committee of the Company is responsible for giving effect to this arrangement : paragraph 9.

（7） The valuation is on the basis that the 8,126 shares allotted pursuant to the Rights Issue have not been allotted : paragraph 6.

（8） The valuer is to take account of the liability of the Company to ST Lee for $257.8 million paid by ST Lee to the Company as subscription money for the 8,126 shares, if he considers appropriate : paragraph 10.

（9） In the event the final determination of the derivative action is in favour of the Petitioners and results in an increase in the value of the Company, ST Lee agrees to pay the Petitioners the proportion of the increase which the Petitioners' shares bear to the aggregate issued capital of the Company (on the basis that the Rights Issue had not taken place)("the Adjustment") : paragraph 2. And the valuer will be asked to value the Adjustment : paragraph 17.

（10） The sale of the Petitioners' shares are to be in 2 tranches. The first tranche covers all the shares of the Petitioners save as to one share for each of the Petitioners. The purchase of the first tranche of shares is to take place within 60 days after the decision of the valuer is delivered, and therefore does not take account of the Adjustment. The second tranche covers the remaining one share of each of the Petitioners with the Adjustment as the price for the shares. Completion shall take place within 90 days after the valuer's determination on the Adjustment is sent to the parties : paragraphs 14 and 20.

（11） In the event the purchase of the shares is not completed due to a failure on the ST Lee's part to act in good faith to carry out his obligations under the agreement, the ST Lee agrees not to oppose the making of a winding-up order. If the Petitioners fail to make free and unencumbered title to any of their shares or have acted to prevent completion of the purchase, ST Lee reserves the right to oppose a winding-up order : paragraph 25.

Reasons for dismissal

13. In dismissing the striking out application, the learned judge relied on five grounds :

（1） The offer does not give the Petitioners all that they can reasonably expect to get on the petition.

（2） The case is not an appropriate one to be dealt with by a straightforward valuation by an expert.

（3） The offer does not provide for "equality of arms".

（4） One of the Petitioners, HY & HT Lee was not given the offer.

（5） There is insufficient safeguard against the failure to complete the purchase.

The learned judge held that it cannot be said that the offer is plainly a suitable and reasonable one and it follows that it is not unreasonable for the Petitioners to refuse to accept it.

The principles

14. Mr. Todd, Q.C., counsel for ST Lee, has very helpfully identified the relevant principles. They are not in dispute and are as follows :

（1） A winding up order is a remedy of last resort: Re a Company (No. 004415 of 1996) [1997] 1 BCLC 479, at pages 487H-488D.

（2） What the petitioners really want on petitions such as this, is not to have the company wound up but to be paid a proper price for their shareholding: Re Westbourne Galleries Limited [1973] AC 360, at page 385E-F.

（3） Both the reliefs sought under s. 168A and an open offer are alternative remedies available to the petitioners, other than a winding-up order: Re a Company [1983] BCLC 151 at pages 158, 159a.

（4） The Court is concerned to exercise active case management and to ensure the crucial issues between the parties can be determined as expeditiously and as inexpensively as possible: Thermawear Limited v. Linton (The Times 20 October 1995, date of judgment 17 October 1995, Re a Company Ex parte Schwarcz (No. 2) [1989] BCLC 427, at pages 436i-437g.

（5） Where the crucial issues between the parties and their effect on the valuation of the petitioners' shares involve questions of mixed facts and law then they should be determined by the court, not by an accountant: North Holdings Ltd. v. Southern Tropics Ltd. [1999] 2 BCLC 625 at pages 637d-g and 639a-c; Re Brio Technology International Ltd. [2000] 3HKC 536, at page 541F-I.

（6） The Court may be concerned if the petitioners were left with nothing more than a personal remedy if the petition was to be struck out: Re Kinong Group Ltd. [1999] 4 HKC 100 at pages 104F-105G.

The basic requirements of a reasonable offer

15. In O'Neill v. Phillips [1999] 1WLR 1092 Lord Hoffmann stated that a reasonable offer should have the following features :

（1） The offer must be to purchase the shares at a fair value.

（2） The offer should provide for the value, if not agreed, to be determined by a competent expert.

（3） The offer should be to have the value determined by the expert as an expert. The objective should be economy and expedition, even if this carries the possibility of a rough edge for one side or the other compared with a more elaborate procedure.

（4） The offer should provide for the equality of arms between the parties. Both sides should have the same right of access to information about the company which bears upon the value of the shares, and both sides should have the right to make submissions to the expert.

（5） The offer should make suitable provisions for the question of costs.

Preliminary matter: The test to be applied

16. The learned judge held that ST Lee has the burden of showing that it is plain and obvious that the offer is a suitable and reasonable one and that the Petitioner had been acting unreasonably in rejecting it. Mr. Todd argued that the appropriate test to be applied on an application to strike out or stay must depend upon the nature of the proceedings and the basis upon which the application to stay or strike out is made. The plain and obvious test is inappropriate to the present application. Such a test applies to striking out on the basis that the pleadings do not disclose any reasonable cause of action. The court is being asked to consider the application summarily, on the basis of a determination on the pleaded case, without the benefit of a full trial. But where the court is being asked to stay a petition on the basis of abuse of process by reason of the open offer there is no need for a full trial. The issues are simply whether the open offer was fair and reasonable and whether the open offer gave to the petitioners all that they could reasonably expect to obtain on the petition if successful. The determination of these issues do not require a full trial with discovery and cross-examination. The court could proceed to determine those issues on the balance of probabilities.

17. I am unable to accept the submission of Mr. Todd. In my view, the learned judge was clearly right to adopt the plain and obvious test. While the issue was whether the open offer was fair and reasonable and whether it gave the Petitioners all that they could reasonably expect to obtain if they are successful on the petition, this remains to be an interlocutory striking out application. The test to be applied is that it is only in plain and obvious cases that an action should be struck out or stayed. If any authority is required, one does not need to look further than Re Abbey Leisure Limited [1990] BCC 60 where the U.K. Court of Appeal was dealing an appeal from Hoffmann J. (as he then was) who struck out a petition because an open offer was made to buy the petitioners' shares. Balcombe L.J. reiterated the position that the jurisdiction under O.18, R.19 or under the inherent jurisdiction should not be exercised unless it is perfectly clear that the claim cannot succeed. He held that :

"Accordingly, as the decision of Hoffmann J to strike out the petition depended on his having formed the opinion that Mr Virdi was unreasonable in not accepting the directors' offer to buy his shares at a valuation made in accordance with the pre-emption provisions of art. 27, we are entitled and indeed bound to review that decision, and if we come to a different opinion then it will necessarily follow that the judge exercised his decision to strike out on a basis which was wrong in principle. At the very least it could not then be said that it was clear that the petition could not succeed." (emphasis added)

I would respectfully adopt the same approach.

Overview

18. In considering the appeal, an overview must be taken of the case. First, the value of the shares of the Company will ultimately depend on the determination of the central dispute between the parties, namely the Rights Issue of 8,126 shares and the misappropriation of the Company's funds to Interstitial. The determination of these two issues clearly involves complicated facts and law. Second, these two issues will have to be litigated irrespective of whether the Petitioners accept the offer or not. Once this overview is identified, the inevitable conclusion is that the learned judge was clearly right in dismissing ST Lee's application.

Basis of valuation

19. Hoffmann J. (as he then was) in Re a Company (No. 006834 of 1988) [1989] 5 BCC 218 observed that there might be cases where the impropriety on the part of the respondent has so affected the value of the shares in the company that it is inappropriate for the matter to be dealt with by a straightforward valuation. Chu J. recognised that the present case belongs to this category. It is accepted by ST Lee that the Rights Issue and the Interstitial allegation involved complicated issues of fact and law which an expert valuer lacks the proper machinery to adjudicate upon. However, ST Lee claimed that the offer had met the concern of the Petitioners because the expert would be asked to value the shares on the basis that the Rights Issue had not taken place. And in the event that a final determination of the derivative action in the Petitioners' favour which results in an increase in the value of the shares of the Company, then the expert will adjust the value of the shares. He claimed that this is a simple arithmetic adjustment.

20. Bearing in mind that the case is concerned with the value of the shares, the starting point must be that the basis of the valuation must be clearly defined from the outset before a receiving party can be said to be satisfied on the true value of the shares. The offer in this case, however, proceeds on the basis of allowing the expert to make adjustments after the court's finding on essential matters which have a direct impact on the value of shares. Mr. Fung SC, counsel for the Petitioners, described this is a topsy turvy way of valuation. I agreed. In my view, this must be the strongest objection to the offer. When there are so many disputes concerning the Rights Issue and the Interstitial allegation, the valuation can only properly start after a determination has been made on them.

21. In any event, I am not satisfied that the offer together with the adjustment mechanism will provide all that the Petitioners are asking for in the first place. It is true that they had asked for the valuation to be conducted on the basis of the new shares being wrongfully allotted to ST Lee and his family. However, they had also asked in the petition that the valuation is on the basis that the Company's investment in the Interstitial preference shares be valued as though Interstitial had never existed. The petition contained detailed methods of valuation of the shares, including valuation of the shares of two companies, namely, Mount Eden and Mount Cook which were involved in the misappropriation by ST Lee. The family members of ST Lee are the beneficiaries of these two companies. The offer does not include the methods asked for by the Petitioners. I have no idea whether the valuation by ST Lee in fact meets all requirements of the Petitioners.

22. In the offer, the expert may take into account the liability of the Company to ST Lee for $257.8 million paid by him as subscription money for the new shares. As the expert is not required to give reasons for the decision and in fact is prohibited from giving reasons, the Petitioners are not in a position to know whether the expert had taken this amount into consideration or not. Mr. Todd argued that the expert will know whether he had taken this amount into consideration and he will adjust the valuation accordingly. In my view the issue is not that of the expert's knowledge but rather, information available to the Petitioners for them to appraise whether they had received a fair offer or not. The offer has failed to do so.

Equality of arms

23. The offer provides that the Petitioners will only have information relevant to any point on which the expert required submissions from the parties and they can only make submissions to him when required by him. The learned judge held that this rather limited right is insufficient to address the unfairness and prejudice complained of by the Petitioners or to ensure that the Petitioners will be given a fair price for their shares. In view of the complaint by the Petitioners of suppression of company information and misinformation provided by ST Lee, the restricted scope of information and representation contained in the offer is clearly not enough to meet the concerns of the Petitioners. Mr. Todd argued that the offer had in fact met all the requirement set out in O'Neill v. Phillips and the provisions relating to information and submissions were similar to those ordered in Re Taipao Reisins Chemical Company Limited (HCCW 590 of 1998) where the majority shareholders wished to wind up the company on just and equitable ground, or alternatively a buy-out of their shares. It is quite clear that the requirements contained in previous judgments are not cast in stone. Situations differ from case to case. In the present case what the offer contains in terms of information and representation is clearly not enough to meet the needs of the Petitioners bearing in mind the very serious allegations raised in the petition.

Case management

24. It is true that the Petitioners had relied on the Rights Issue and misappropriation of funds in the derivative action as well. They had asked for the derivative action to be tried at the same time as the petition. But if the Petitioners have to litigate these two issues in the petition itself, I fail to see how it can be described as an abuse of the process of the Court for the Petitioners not to accept the offer and insist on continuing with the petition. The nature of the petition and the derivative action is different. The former deals with the rights of the Petitioners as shareholders, the latter is an action brought by the Company.

25. Mr. Todd argued that the offer obviates the necessity of the Petitioners having to establish unfairly prejudicial conduct, a lengthy trial to determine whether such conduct exists and a determination of the issues in the petition other than those relating to the Rights Issue and misappropriated funds allegation. The other issues in the petition do not affect the value of the Petitioners' shares in the Company. It was argued that there is a public interest to be served in the due administration of justice. It is important to reduce costs and delay in civil litigation, not only to the parties but also those who are waiting in the queue to have their cases tried. It is the duty of the judge to identify the crucial issues and to ensure that these issues are tried as expeditiously and inexpensively as possible. In my view, it may well be true that the other allegations in the petition may not affect the value of the shares. However, in order to have a complete picture of the case, it will be inevitable that these allegations will have to be adduced as the background leading to the central allegations. In terms of exercising case management, which ultimately is a task for the trial judge, the learned judge had clearly identified the central dispute, nonetheless she considered that the appropriate course was for the petition to continue. She was clearly right.

Lack of offer to HY & HT Lee

26. The Petitioners hold majority interest in HY & HT Lee. When the offer was made to the Petitioners, HY & HT Lee was not yet one of the Petitioners. The Petitioners' solicitors had on 14 March 2001 asked ST Lee's solicitors to include HY & HT Lee in the offer. The response was that he will consider the position when the Petitioners are given leave to join HY & HT Lee. The learned judge granted leave to HY & HT Lee to be joined as a Petitioner but the offer is still not extended to them. Mr. Todd argued that the Petitioners were seeking a collateral advantage not available to them in the petition because HY & HT Lee was not then a party to the petition. It had no right to be bought out or any entitlement to have the open offer extended to it.

27. Whatever may be the position then, it is clear that HY & HT Lee has become a Petitioner in its own right by now. But in view of my decision, it is not necessary to decide whether the lack of offer to it was a valid ground for the Petitioners not accepting the offer in the first place.

Failure to complete

28. The learned judge also found that the Petitioners' concern that ST Lee would not complete the purchase was not a fanciful one. Again it is not necessary for me to deal further with this matter.

Joinder of HY & HT Lee

29. It is clear from the evidence that HY & HT Lee had duly authorised the Petitioners' solicitor to join it as a party. In any event, it had not applied to be struck out for being improperly joined in the first place. In my view HY & HT Lee was properly joined as a party. I fail to see how its position in the joinder can be any different even though it was not a party originally. It was precisely because it was not an original petitioner that it had to apply to be joined.

Conclusion

30. I will dismiss the appeal with costs nisi to the Petitioners together with the certificate for two counsel.

Rogers V-P:

31. I agree. In view of the fact that I consider the matter is so clear, I do not consider it necessary or appropriate to add anything further of my own.

32. There will be an order as proposed in paragraph 30.