AGRITRADE RESOURCES LTD THROUGH THE JOINT PROVISIONAL LIQUIDATORS NG KIAN KIAT, OON SU SUN AND E ALEXANDER WHITTAKER AND ANOTHER v. ASHOK KUMAR SAHOO

HCA 1660/2020

[2020] HKCFI 2891

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1660 OF 2020

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J U D G M E N T

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1.  On 28 September 2020, Godfrey Lam J granted a worldwide Mareva injunction against the defendant. He did not make any disclosure order. Today is the return date of the inter-partes summons. The parties are agreed that the injunction should continue until the determination of the summons at the substantive hearing or until further order. The parties are also agreed on other incidental directions.

2.  There are only three matters which are in dispute between the parties : -

(i)    whether there should be a disclosure order made at this stage;

(ii)   whether the living expenses allowed by Godfrey Lam J at US$2,500 per week should be increased to US$4,000 per week as requested by the defendant; and

(iii)  whether the legal expenses allowed by the learned judge at US$25,000 should be increased to US$255,000 as requested by the defendant.

3.  Regarding the disclosure order, Mr Brown for the plaintiff argues that a disclosure order is standard in the context of a grant of a Mareva injunction.  I take the view that whether a disclosure order should be made should depend on the circumstances and the evidence in each case. 

4.  Mr Brown has challenged the veracity of the defendant in his production of his unaffirmed affirmation which obviously must have been done within a limited time.  I also take into account the fact that the defendant is in Singapore.  That must be somewhat of a hurdle in his giving instructions. 

5.  Mr Lung, for the defendant, has also given an explanation about some of the matters mentioned in the unaffirmed affirmation on which he had taken instructions. 

6.  In deciding whether I should make a disclosure order, I should also consider the strength or weakness of the plaintiff’s case on the evidence before me at this stage on which I should not say very much.  I also have to balance the interests of both parties bearing in mind that I have practically heard only one side. 

7.  I have come to the conclusion that the fairest thing for me to do is not to make a disclosure order now but to give liberty to the plaintiff to apply for a disclosure order after the defendant has filed his affirmation in reply by giving not less than 72 hours’ notice, even well before the substantive hearing of the summons, should there be justifiable grounds based on the said affirmation in reply.

8.  In order to shorten the time frame, I propose to order that the defendant should file his affirmation within 21 days from today. 

9.  On the living expenses, I am prepared to raise them from US$2,500 per week to US$3,500 per week.  On the legal expenses, I am prepared to raise them from US$25,000 to US$150,000. 

10.  I therefore make the following order: -

(1)  the injunction order granted by Godfrey Lam J on 28 September 2020 be continued until after the determination of the inter-partes summons or until further order subject to the following variations: 

Under sub-paragraph (1) under the heading “Exception to this Order”, the figure of “US$25,000” should be varied to read “US$150,000” and the figure of “US$2,500” should be varied to read “US$3,500”.

(2)  the plaintiff has liberty to apply for a disclosure order after the defendant has filed his affirmation in reply by giving not less than 72 hours’ notice, even well before the substantive hearing of the summons, should there be justifiable grounds arising out of the said affirmation in reply; 

(3)  the defendant shall file his affirmation in reply within 21 days from today; 

(4)  the plaintiff shall file his affirmation in response within 21 days thereafter; 

(5)  no further affirmation may be filed without leave of the court;

(6)  the inter-partes summons be adjourned for substantive argument to an early date to be fixed before a judge with 3 hours reserved;

(7)  costs be reserved.