YVES CHARLES EDGAR BOUVIER v. PASCAL MARIE MICHAEL DE SARTHE AND OTHERS

HCA 1822/2025

[2026] HKCFI 2483

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1822 of 2025

________________________

BETWEEN

__________________

__________________

DECISION

__________________

1.  There are two summonses before the court. The first summons is the 4^th defendant’s summons of 19 March 2026, to discharge the undertakings given by the 1^st to the 3^rd defendants, incorporated in Deputy High Court Judge Kent Yee’s order of 3 October 2025, insofar as those undertakings relate to the disclosure of the identity of the purchasers of artwork and the sellers and purchasers of reinvested artwork.

2.  There is also the 1^st to 3^rd defendants’ summons of 19 March 2026 to extend time for providing disclosure to seven days after the determination of the 4^th defendant’s discharge summons.

3.  The plaintiff seeks an immediate dismissal of the discharge summons and consequently the dismissal of the time extension summons.

4.  The 1^st to 3^rd defendants is neutral to the discharge summons, but has taken out its time extension application to preserve the status quo. The extension of time application is parasitic on the discharge summons.

5.  The 4^th defendant asked the court to give directions for the filing of evidence on the discharge summons and for the relevant disclosure by the 1^st to the 3^rd defendants to be stayed in the meantime.

6.  The court has had the benefit of comprehensive written submissions filed by the parties, including as to the factual and procedural background leading up to the current position. In the interest of time, I will not rehearse them in this decision.

7.  The relevant legal principles governing an application for discharge of an undertaking to court are not in dispute. They are set out in paragraphs 48 and 49 of the plaintiff’s skeleton and in paragraph 30 of the 4^th defendant’s skeleton.

8.  Relevantly, the situations include where there has been a material change of circumstances since the undertakings were given, which were not foreseeable at the time and which make compliance not feasible, and where an undertaking was obtained through fraud, misrepresentation or mistake. The relevant ground being relied on here is that of mistake.

9.  Mr Li, SC, also referred to the principle in the case law that an undertaking may be discharged where circumstances have arisen which make that course a proper one in the interest of justice.

10.  I have taken into account the submissions made by both parties, and at this hearing this morning, I have had considerable assistance from the oral submissions of all leading counsel of all parties. I have reached the conclusion that both summonses before me should be dismissed.

11.  These are my main reasons. First, it is unclear to me that there is a sound legal basis for the 4^th defendant to seek to discharge the undertakings given by the 1^st to the 3^rd defendants. Those defendants were sued in their capacity as the parties to whom the artwork was entrusted and the undertakings were given by those parties to the court. In my view, it should generally be for the party subject to the undertaking to apply for its discharge, not a third party. Accordingly, I have reservations as to whether the 4^th defendant has the necessary standing to make the present application. I should make it clear, however, that this is not the sole basis on which I decide the present application.

12.  Second, as a matter of fact, the 1^st to 3^rd defendants have already made an application under their summons of 28 November 2025 for a stay in discharge of its disclosure obligations. These submissions were considered but not accepted by Deputy High Court Judge Grace Chow, as indicated in her decision made on the 12 December 2025, who refused the interim stay sought. Her main reasons appear in paragraph 13 of her reasons for that decision to which I have made reference.

13.  It seems to me that whether the 4^th defendant has a valid complaint against the 1^st to the 3^rd defendants agreeing to disclose confidential information without the 4^th defendant’s consent is a matter between him and his agents.

14.  Third, the reality of adjourning the discharge summons is that a further extension of time would need to be granted to the 1^st to the 3^rd defendants to comply with their outstanding disclosure obligations.

15.  One should not lose sight of the fact that the original disclosure undertaken to be given by the 1^st to 3^rd defendants was on or before 4 pm on the 14 November 2025. Since then, multiple time extensions have been sought and obtained. By now, nearly six months has passed since the original deadline, and I take the view that there should not be any further delay in disclosure.

16.  Fourth, although Mr Peretti was not originally joined as a party to these proceedings, he has had ample notice of these proceedings. His previous solicitors were provided with submissions for the earlier hearing in December 2025 and also appeared by counsel in a hearing in March 2026 on the joinder application. However, the first indication of an application to discharge the undertakings by the 4^th defendant was by way of the current summons.

17.  Although Mr Peretti has only most recently been joined in these proceedings, I do not think it can be said that there was no previous opportunity for him to ventilate his concerns.

18.  Fifth, insofar as the discharge application is founded on alleged mistake, it seems to me that this is a matter for the 1^st to the 3^rd defendants to raise. Whether there was in fact any mistaken assumption or not would seem to turn on their state of mind and the relevant facts when the undertaking was given to the court in October 2025. However, there is no evidence from the allegedly mistaken party to found the present application.

19.  Sixth, I do not agree that there has been a material change of circumstance to warrant the discharge of the undertaking. The requirement is that of a material change of circumstances not foreseeable at the time which makes compliance not feasible. I am not satisfied these requirements are met. It appears that compliance with the buyer and seller disclosure undertaking still remains feasible.

20.  Moreover, given that the case of the 4^th defendant is that the 1^st to 3^rd defendants were agents, the fact that the 4^th defendant might later object to such disclosure due to lack of consent is a matter which was reasonably foreseeable at the time when the undertakings were given.

21.  To put it another way, there is no change of circumstance which fundamentally alters the basis on which the undertakings were originally given and which would make compliance unjust.

22.  In addition, I would observe that the question of buyer and seller confidentiality was previously raised by the 1^st to 3^rd defendants at the hearing before Deputy High Court Judge Grace Chow on the 12 December already. And in my view, the fact that a similar complaint is now raised by Mr Peretti, a different party, does not constitute a material change in circumstance.

23.  Seventh, on the question of whether the disclosure is ancillary to the preservation order, I have reminded myself that my function is not to reopen argument as to whether the undertakings should have been given in the first place. The fact of the matter is that they were given in clear and unequivocal terms.

24.  Eighth, on the implied undertaking issue, initially I had considered requiring an express undertaking from the plaintiff to the effect that all documents and information disclosed by the 1^st to 3^rd defendants pursuant to their undertakings and all related future disclosure would not be used by the plaintiff otherwise than for the purpose of the present proceedings.

25.  Mr Manzoni SC, submitted that such an order could be made by way of the court expressly as a matter of case management. Ms Tong SC, submitted that as a matter of law, the undertakings were given by the 1^st to 3^rd defendants without compulsion and voluntarily and therefore the collateral use undertaking does not apply. Reference was made by her to the Court of Appeal decision in Shun Kai Finance. In addition, she pointed out that there needs to be justification for an express order to that effect being made.

26.  Having considered the submissions of the parties and mindful that I am only dealing with the matter on a summons day, I have decided to leave this question open at the present stage both on the law and on the facts. For the reasons I have stated above, it is sufficiently clear to me that both summonses should be dismissed without an express order prohibiting collateral use.

27.  It would therefore be strictly unnecessary for me to go further than this in reaching my decision. I should make it clear to all of the parties that no finding is made on whether the implied undertaking applies to disclosure already given or to be given or whether there is justification for such further order. I expressly leave it open to the parties to address the court on these issues at a later stage should the need arise or make an application to court for such an express order to be included.

28.  So for these reasons, I dismiss both the discharge and the extension of time summons. I should record my gratitude to the assistance that I have received from all counsel before me. I will hear the parties on costs.

Discussion re costs

29.  On the 1^st to the 3^rd defendant’s extension of time summons, I will make no order as to costs. On the 4^th defendant’s summons to discharge dated 19 March 2026, I will order that the costs of that summons be paid by the 4^th defendant to the plaintiff to be taxed if not agreed, with certificate for two counsel.

30.  In case any ambiguity arises, I make it clear that for the purpose of taxation, Ms Au’s time in preparation of the skeleton arguments should be recoverable in taxation. I decline to make an order for indemnity costs.

Discussion re timing of compliance

31.  What I will do in light of the submissions made by the parties on this timing issue is I will grant an order that time for the 1^st to 3^rd defendants to comply with paragraph 1 of the order of Deputy High Court Judge Grace Chow dated the 2 March 2026 be extended to 4 pm on the 17 April 2026.