XIAMEN XINJINGDI GROUP CO LTD RE ALL THOSE PIECES OR PARCELS OF GROUND REGISTERED IN THE LAND REGISTRY AS LOT NOS 526 AND 527 v. ETON PROPERTIES LTD AND OTHERS

CACV 158/2012

[2018] HKCA 942

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 158 OF 2012

(ON APPEAL FROM HCCL NO 13/2011)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  By a judgment dated 15 April 2016 (“the judgment”), this court allowed in part the plaintiff’s appeal against the judgment of Deputy High Court Judge Stone QC dated 14 June 2012 dismissing all of the plaintiff’s claims against the defendants. By its appeal, the plaintiff had appealed against the dismissal of its claims against the 1^st to 2^nd, 3^rd to 5^th, 6^th and 10^th defendants.

2.  The background facts are more fully set out in [2] to [95] of the judgment, but for present purposes, the following is a brief summary:

(1)  In 2003, the plaintiff and the 1^st and 2^nd defendants entered into an agreement to enable the plaintiff to develop land in Xiamen, for which the 5^th defendant, a wholly owned subsidiary of the 4^th defendant (in turn owned by the 1^st and 2^nd defendants holding one share each), held land use rights, in consideration of payments totalling RMB120 million being made by the plaintiff to the 1^st and 2^nd defendants.  The 1^st and 2^nd defendants’ consent was required for various matters, and they were to have the right to supervise development and operations.  On full payment, the 1^st and 2^nd defendants were to transfer their shares in the 4^th defendant to the plaintiff.  The agreement contained an arbitration clause requiring disputes to be resolved by a CIETAC arbitration on the Mainland.

(2)  Soon after the agreement was entered into, however, the 6^th defendant (the ultimate controlling shareholder of the 1^st and 2^nd defendants) decided to repudiate the agreement, whereupon the 1^st and 2^nd defendants notified the plaintiff of their decision to discontinue further performance of the agreement, and sought to return the monies so far paid by the plaintiff to them.  The plaintiff did not accept the repudiation.

(3)  Thereafter, the 1^st and 2^nd defendants’ group of companies looked into the possibility of setting up a Mainland holding company for the various real estate development companies of the group in the Mainland.  Eventually, as part of a restructuring to achieve this, the 1^st and 2^nd defendants’ shareholding in the 4^th defendant was heavily diluted by the issue to the 3^rd defendant of new shares in the 4^th defendant.  The 1^st defendant subsequently transferred its single share in the 4^th defendant to the 3^rd defendant, and the 2^nd defendant declared itself a trustee of its single share in the 4^th defendant in favour of the 3^rd defendant.  The judge accepted the 10^th defendant’s evidence that these steps were not undertaken with the intention of breaching the contract between the plaintiff and the 1^st and 2^nd defendants, which he regarded as having already been terminated by that point.

(4)  Meanwhile, unaware of the proposed restructuring, the plaintiff commenced arbitration proceedings, which culminated in an award being made in the plaintiff’s favour on 27 October 2006.  The award required the 1^st and 2^nd defendants to pay RMB1.275 million to the plaintiff and to “continue to perform the agreement”.  Although, by the time the award was issued, the share restructuring involving the 4^th defendant had been completed, this was not made known to either the plaintiff or the tribunal.

(5)  On 21 September 2007, the plaintiff applied to the High Court in Hong Kong to enforce the award pursuant to sections 2GG and 40B of the Arbitration Ordinance.  On 31 October 2007, Andrew Cheung J (as he then was) gave leave to do so and entered judgment in terms of the award.  It was only after this that the plaintiff came to learn of the restructuring and of the divestment by the 1^st and 2^nd defendants of their interests in the 4^th defendant.

(6)  Thereafter, on 27 May 2008, the plaintiff commenced further proceedings in Hong Kong to enforce the award at common law.  These proceedings eventually became HCCL 13/2011, in which additional claims were made, and from which the appeal was brought.

3.  The plaintiff’s claims consisted of:

(1)  A claim against the 1^st and 2^nd defendants to enforce the arbitration award by a common law action on the award, which ultimately was advanced as a claim for damages for non-performance of the award.

(2)  A claim against the 3^rd to 6^th and 10^th defendants for the tort of inducing breach of contract by allegedly inducing the 1^st and 2^nd defendants to breach their contract with the plaintiff.

(3)  A claim against the 1^st to 6^th and 10^th defendants for unlawful means conspiracy based on an alleged conspiracy to bring about the breach by the 1^st and 2^nd defendants of the contract with the plaintiff.  At trial, the plaintiff also sought to put forward an (unpleaded) case of conspiracy to injure.

(4)  A claim for constructive trust against the 3^rd defendant over the shares in the 4^th defendant.

4.  As noted above, the judge dismissed all of these claims.  In our judgment, we differed from the judge in relation to the claim based on the action on the award, holding that it was open to the plaintiff to advance this claim as a claim at common law for damages for non-performance of the award, that the plaintiff had not elected to enforce the award by the statutory route so as to lose the right to put this claim forward, but that the plaintiff would have to elect between maintaining the judgment of Andrew Cheung J, and giving it up in favour of an award for damages under the common law claim (see the judgment at [72] to [202]).  However, we agreed with the judge that all of the other claims failed, and dismissed the appeal so far as those claims were concerned (see the judgment, at [203] to [254] in relation to inducing breach of contract, at [255] to [266] in relation to conspiracy, and at [267] to [277] in relation to constructive trust).

The Notices of Motion

5.  By their Notice of Motion dated 13 May 2016, the 1^st and 2^nd defendants seek leave to appeal to the Court of Final Appeal against the part of our judgment allowing the appeal in relation to the common law action on the award, on the ground that the questions involved in the intended appeal are questions which, by reason of their great general or public importance, ought to be submitted to the Court of Final Appeal for decision (this being one of the criteria for the grant of leave identified in section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484)).  In paragraph 12 of the Notice of Motion, they set out ten questions which they seek to put before the Court of Final Appeal as questions of great general or public importance.  These were as follows:

(1)  Whether the Hong Kong Court’s function in enforcing a mainland arbitration award requiring further continued performance of the underlying contract extends to the Hong Kong Court replacing the agreed arbitral tribunal as the forum under the arbitration agreement to decide on a claim by the plaintiff for damages for loss of the bargain?

(2)  Whether awarding and assessing damages for loss of the bargain is ‘enforcement’ in Hong Kong of a mainland award for continued performance of a contract?

(3)  Whether in a common law action for enforcement of a mainland arbitral award, the Court can depart from a mechanistic approach as adopted in the statutory enforcement procedure, in light of the rationale behind the New York Convention?

(4)  Are questions as regards the entitlement to and assessment of damages matters for the arbitral tribunal agreed by the parties? Whether the Hong Kong Court as the enforcing court should perform these functions without the agreement of the parties?

(5)  Whether different principles and policies are to be applied in resolving the above questions depending on whether the underlying cause of action is a common law action on a mainland award claiming damages for non-performance of the award, or summary enforcement under the Arbitration Ordinance or enforcement of an award under the New York Convention, or whether the principles and the policies to be applied by the Hong Kong Court as the court enforcing the award are the same? Whether the applicable principles and policies justified what was done by the Court of Appeal?

(6)  What is the correct approach for the enforcement Court in determining whether to accede to an application for stay in favour of arbitration where there is a dispute over the claimant’s entitlement to and assessment of damages on a contract which is the subject of an award for continued performance; and in particular, whether such determination should turn on an interpretation of the arbitration agreement and whether the dispute should be referred to arbitration under that agreement?

(7)  What has to be pleaded and proved in Hong Kong in a common law action claiming damages for non-performance of an award and whether what was pleaded and proved in the present case was sufficient to ground a judgment for damages?

(8)  Whether the rule in Johnson v Agnew [1980] AC 367 and/or legal principle prevents an enforcement court from awarding damages on the basis of loss of bargain when there is an extant award for continued performance of the underlying contract?

(9)  Whether the applicable law on enforcement by the common law action on a foreign award is the lex causa or the lex fori?

(10)  Whether election between pursuing an award for continued performance of the contract and pursuing an award for damages for breach of the underlying contract is an election between inconsistent rights or inconsistent remedies, and what are the principles governing such election, in particular, whether the plaintiff should be treated as having elected to proceed on the basis of the arbitral award for continued performance by reasons of the numerous steps taken in the proceedings after the Plaintiff had knowledge of the restructuring in January 2008?

6.  The 1^st and 2^nd defendants also suggest that for the reasons set out in paragraph 13 of their Notice of Motion, leave to appeal to the Court of Final appeal should be granted on the “or otherwise” ground (the other basis for the grant of leave under section 22(1)(b) of the Ordinance).

7.  By its Notice of Motion lodged on the same day, the plaintiff also seeks leave to appeal to the Court of Final Appeal, against the parts of our judgment dismissing their appeal in relation to the inducing breach of contract, conspiracy, and constructive trust claims (although it is not sought to appeal in respect of the dismissal of the claims so far as they concerned the 10^th defendant).  The plaintiff has formulated eight questions which it says should be submitted to the Court of Final Appeal for consideration by reason of their great general or public importance, namely:

(1)  Where a person hatches a scheme and makes a decision in jurisdiction A to procure a breach of contract, and by instructions given in jurisdiction A, procures other persons in Hong Kong to renounce and/or breach a contract by acts committed in Hong Kong (including putting it out of the power of the contractual parties to perform the contract), where the original performance of the contract in terms of the transfer of shares was to take place in Hong Kong, and where the loss occurs in Hong Kong, should it be held that the location of the commission of the tort of procurement of breach of contract was jurisdiction A so as to engage the principles of double-actionability (as held by the Court of Appeal) or Hong Kong (as contended for by the Plaintiff)? If not, what principles govern the determination of the location of the commission of the tort? Should it be held in these circumstances that the tort was committed in Hong Kong?

(2)  Where (i) there is a contract between A (Plaintiff) and B (EP and EP Holdings); (ii) C (Mr Tan, EP Group and HK Legend) knows of the existence of the contract; and (iii) C influences or persuades B to breach the contract by concluding dealings with B (the restructuring) which are inconsistent with the contract between A and B and objectively put it out the power of B to perform its contract with A, whether C can be liable for procurement of the breach of contract between A and B.  Specifically whether there is a requisite causative procurement, if it is to be argued that Mr Tan had already previously but unsuccessfully sought to put an end to the contract between A and B by the “renunciation”.

(3)  Where a person hatches a scheme and makes a decision in jurisdiction A (PRC) to procure a breach of contract, and gives instructions to and combining with, the contracting parties in Hong Kong to renounce and/or breach a contract, in circumstances where the renunciation and the breach is committed by acts in Hong Kong (including putting it out of the power of the contractual parties to perform the contract), where the original performance of the contract in terms of the transfer of shares was to take place in Hong Kong, and where the loss occurs in Hong Kong, should it be held that the location of the commission of the tort of unlawful means conspiracy was jurisdiction A (PRC) so as to engage the principles of double‑actionability? If not, what principles govern the determination of the location of the commission of the tort? Should it be held in these circumstances that the tort was committed in Hong Kong?

(4)  Where a claim is brought by a purchaser in the Hong Kong Court to invoke its equitable jurisdiction for the equitable remedy of constructive trust over the subject matter of the purchase under an agreement for the sale and purchase of shares in a private company, which contains an express provision that the agreement is governed by a foreign law:

(a) Whether such claim is bound to fail if the foreign law does not recognise the concept of constructive trust.

(b) Whether such claim may succeed if the nature of the obligation of the vender under the foreign law, as characterized under Hong Kong law, is an obligation which gives rise to, or is capable of supporting, the equitable remedy of constructive trust.

(5)  Even where the concept of equity and constructive trust is unknown to PRC law, whether the nature of the obligation under PRC law of a defaulting vendor to continue to perform an agreement for the sale of property should be characterised under Hong Kong law as an obligation which gives rise to, or is capable of supporting, the equitable remedy of constructive trust in an action in Hong Kong.

(6)  Whether the proper law governing a claim in Hong Kong by a purchaser on constructive trust over the shares in a private company incorporated in Hong Kong arising from an agreement for the purchase of such shares shall be governed by Hong Kong law, notwithstanding that the agreement contains a choice of law clause for foreign law to be the governing law of the agreement itself.

(7)  Under Hong Kong law, whether an agreement for the sale and purchase of the entire issued shares in a private company, which ultimately holds land or development rights in land situated outside Hong Kong, should be amenable to specific performance and therefore give rise to a constructive trust over the shares, in circumstances where the agreement contains provisions that, pending completion of the sale by transfer of the shares upon full payment of the purchase price:

(a) possession of the land be given to the purchaser before full payment of the purchase price, with liberty to, but no obligation upon, the purchaser to develop or sub-sell interests in the land in the meantime; and

(b) in the event that the purchaser does take possession of the land and does carry out development of the land before full payment, express powers be reserved to the vendors to regulate the development activities.

(8)  Under Hong Kong law, whether an agreement for the sale and purchase of the entire issued shares in a private company, which ultimately holds land or development rights in land situated outside Hong Kong, is an agreement for the joint venture development of land, in circumstances where the agreement contains provisions that:

(a) pending completion of the sale by transfer of the shares upon full payment of the purchase price, while possession of the land would be given to the purchaser, the purchaser is not obliged to undertake any development of or sub-sale of interests in the land in the meantime; but in the event that the purchaser does undertake such activities, there are mechanisms for co‑operation between the parties on and/or for the vendor’s supervision of such activities;

(b) irrespective of whether the purchaser does undertake such activities for development of or sub-sale of interests in the land before completion, the consideration payable by the purchaser is at a fixed sum and the vendor is not entitled to any share in the profits from any development or sub-sale of interests in the land by the purchaser.

8.  We heard the parties on the Notices of Motion on 19 September 2017, and reserved our judgment at the end of the hearing.  We now hand down our judgment, with apologies for the time taken to do so.

The 1^st and 2^nd defendants’ Notice of Motion

9.  We deal first with the 1^st and 2^nd defendants’ Notice of Motion.  Although paragraph 12 identified ten questions to be submitted to the Court of Final Appeal because of their great general or public importance, in his skeleton submissions, Mr Gee QC consolidated these into four broader questions, which were put in the following terms:

(1)  Whether damages for loss of bargain may be granted to the plaintiff in a common law action to enforce an award which merely stipulated continuance of performance of contact?

(2)  Whether the court should have stayed the proceedings and required the plaintiff to go to arbitration if it wished to bring such a claim for damages?

(3)  Whether the arbitral tribunal was functus so that the plaintiff could not have asked it to entertain a claim by the plaintiff for damages, or whether it was in fact open to the plaintiff to ask the tribunal to set aside its award for continuous performance of the contract with a view to obtaining an award for damages instead?

(4)  Whether the plaintiff had already elected to seek performance of the agreement, so that it was no longer open to it to seek damages for failure to perform the award instead?

10.  We do not consider that the first of these questions raises a point of great general or public importance.  Nor it is one which is, in our view, reasonably arguable.  The question proceeds on a mistaken premise, namely that in awarding damages in an action on the award, the court is making an award of damages for loss of bargain on the underlying contract which contained the arbitration clause.  For the reasons given in our judgment (at [104] to [177]), we consider that it is clear that an action on the award is based not on a breach of the underlying contract, but of a different implied promise that arises when the parties’ dispute is submitted to arbitration.  Any remedies granted are therefore not in respect of the original contract, but for the breach of that (later) implied promise.  Damages are not, therefore, granted in respect of the loss of bargain under the original contract, but in order to compensate for the non-performance of the award.  This is a different breach, and damages may well be different from the loss of bargain under the original agreement.

11.  In his oral submissions, Mr Gee also suggested that this question could be regarded as going to the jurisdiction of the court, suggesting that in a common law action on the award the court could only give judgment in terms of the award, just as would be the case where the statutory process was followed.  For the reasons given in our judgment at [115] to [145] and [163] to [177], we do not think this is correct.  Nor do we think that it is reasonably arguable or one giving rise to a point of great general or public importance.

12.  As for the second question, we think the position is the same.  It was dealt with in the judgment at [178] to [186].  It is neither reasonably arguable, nor a question of great general or public importance.  It proceeds on the same misapprehension, and conflates the underlying contract with the implied promise that is the basis of the action on the award.  An action on the award is clearly a matter which concerns enforcement of the award, and as such is not a matter for the arbitral tribunal (see Article 8 of the UNCITRAL Model Law on Arbitration).

13.  So far as the third question which was dealt with in the judgment at [184] to [186] is concerned, it is wholly fact-dependent, and as such is not one which can be said to be a question of great general or public importance.

14.  Finally, as to the fourth question, this was dealt with at [187] to [202] of the judgment.  It seems to us that it is an issue which is both fact and context sensitive, and for the reasons we gave, not one which is reasonably arguable, nor one of great general or public importance, as the principles are well-established.

15.  At the hearing, Mr Gee argued the election argument differently from the way in which it was put in the skeleton.  He suggested that in order to obtain a judgment for damages instead of for continued performance of the contract, it would be necessary for the plaintiff to give up the award.  However, it seems to us that this is not arguable.  If the plaintiff were to give up the award, or seek its setting aside, as Mr Gee suggested it should, this would cut away the essential foundation on which the action on the award is based.  Without the award, there could be no common law action for its enforcement.  We therefore do not think that this way of putting the argument assists the 1^st and 2^nd defendants.

16.  Finally, at the hearing, Mr Gee put forward a further argument which was not given prominence in the skeleton argument, which he described as a conflicts of law point, the contention being that this court was wrong to have applied Hong Kong law to the consideration of the action on the award, on the basis that the action related to remedies, and as such was governed by the lex fori.  Mr Gee submitted that as a substantive common law action, the matter should be governed by the lex causae, which he said was PRC law.  With respect, we do not think that this is reasonably arguable, for the reasons given in [155] to [160] of the judgment.

17.  For the foregoing reasons, we are satisfied that none of the questions suggested by Mr Gee can be said to be questions of great general or public importance, or that they are reasonably arguable.  In the circumstances, we would not grant leave to appeal to the Court of Final Appeal in respect of any of them.

18.  So far as the application is based on the “or otherwise” ground, in accordance with the usual practice, this court will not grant leave to appeal to the Court of Final Appeal on this basis, and will leave it to the Court of Final Appeal to consider whether or not leave should be granted under this ground.

19.  We therefore dismiss the 1^st and 2^nd defendants’ application for leave to appeal.

The plaintiff’s Notice of Motion

20.  Mr Joseph QC addressed us on questions 1 to 3 posed by the plaintiff (relating to inducing breach of contract and conspiracy), while Mr Chan addressed us on questions 4 to 8 (relating to the constructive trust claim).

21.  So far as question 1 is concerned, this raises the question whether we were right to conclude that the double actionability rule was engaged in relation to the inducing breach of contract claim in the first place.  We concluded that it was, on the basis that the tort was committed on the Mainland, outside the Hong Kong jurisdiction (see the judgment at [212] to [236]).  Mr Joseph suggested that we had not considered the logically prior question of where the tort took place, contending that in substance the tort took place in Hong Kong, as that was where steps were taken to implement the renunciation and where damage was suffered (on the basis that the damage was the failure to transfer the shares in the 4^th defendant, a Hong Kong company, to the plaintiff).

22.  With respect, we do not think that the question posed is of great general or public importance, nor it is reasonably arguable.  The factors mentioned in [216] and [236] are, we think, supportive of our conclusion that the tort was committed on the Mainland.  In particular, it seems to us to be clear (as it was to the arbitral tribunal) that although the mechanism used was the transfer of shares in the 4^th defendant, the objective of the transaction was to achieve the effective transfer of land use rights in Xiamen, and that in consequence, the damage should be regarded as being suffered there.  Combined with the fact that many of the relevant acts took place on the Mainland, it seems to us that the tort was committed substantially on the Mainland, thus engaging the double actionability rule.

23.  Even if that were arguably not the case, it seems to us that this would mean only that our decision was arguably incorrect.  In circumstances where the relevant legal principles are well-settled, this does not give rise to a question of great general or public importance.

24.  As for question 2, this seeks to raise the question of whether or not inconsistent dealings can give rise to liability for the tort of inducing breach of contract, or whether some additional element of causation is necessary.  As is clear from [204] to [206] of the judgment, we proceeded on the basis of the law as set out in OBG v Allan [2008] 1 AC 1, and concluded, for the reasons explained in [245] to [254] that there was no “intentional causative participation” so as to result in liability.  In our view, the question does not raise any matter of great general or public importance, as the law is now settled, and as explained above, an error (if there be one) on the part of this court in applying the law does not of itself elevate a question to one of great general or public importance.

25.  Question 3 raises substantially the same point as question 1, but in the context of the claims for conspiracy.  For the same reasons as explained above in relation to question 1, we would not regard it as giving rise to an arguable appeal, or to a question of great general or public importance.  Moreover, in respect of this question, the plaintiff faces the further difficulty that there are concurrent findings of fact that the acts complained of as amounting to the conspiracy were not targeted at the plaintiff, so that there was no common intent to injure (required for unlawful means conspiracy), let alone a predominant purpose of causing injury to the plaintiff (required for conspiracy to injure).  The claim would therefore fail regardless of the answer given to this question, and accordingly leave to appeal should not be given.

26.  Turning to questions 4 to 8, which relate to the constructive trust claim, we do not consider that any of them give rise to a question of great general or public importance, for which leave to appeal to the Court of Final Appeal should be given.

27.  The plaintiff suggested that the questions gave rise to three main issues, relating to:

(1)  Whether the nature of the obligations under PRC law gave rise to a constructive trust remedy in the Hong Kong court (this issue was said to be addressed by questions 4 and 5).

(2)  Whether the court should have applied the lex situs (i.e. Hong Kong law, as the subject matter of the proposed constructive trust consisted of shares in a Hong Kong company) notwithstanding that the governing law of the agreement was PRC law (this issue was said to be addressed by question 6).

(3)  Whether or not the agreement in fact required “constant supervision or co-operation” (this issue was said to be addressed by questions 7 and 8).

28.  As to the first of these issues, this is addressed by [270] to [272] of the judgment.  Both the trial judge and this court accepted the views of the defendants’ expert, Professor Cui, to the effect that PRC law did not have the concept of constructive trust. It was also held that nothing in the materials suggested that PRC law imposed other obligations on the defendants which might be regarded by a Hong Kong court as giving rise to fiduciary obligations. Thus, the plaintiff is faced with concurrent findings on this question of fact relating to foreign law, which it would not seem able to overcome.  This issue is thus one which is both fact sensitive (being dependent on evidence of foreign law) and lacking in reasonable prospects of success.

29.  The second issue is, in our view, not reasonably arguable given the existence of the express choice of law clause in the agreement, and the fact that the plaintiff’s case is premised on the contractual obligation on the 1^st and 2^nd defendants to transfer the shares of the 4^th defendant to the plaintiff.  That obligation arises under the agreement, and must thus be governed by the proper law of the contract, in this case PRC law.  Insofar as there might be a question of construction of the agreement, that would turn on the specific terms of the agreement concerned, and would not be a matter of great general or public importance.

30.  Finally, the third issue appears to us to be one which is very much fact sensitive and as such not susceptible to giving rise to a question of great general or public importance.  Moreover, it does not appear to us to be reasonably arguable, as the agreement clearly provided for cooperation between the parties, and would require such a degree of supervision on the court’s part such that it would not be suitable for specific performance.  In any event, to the extent that it is premised on the supposition that the plaintiff might choose not to exercise its right to carry out development before completion of the agreement, there is no reason or basis for making such a supposition, and it would be inappropriate to construe the agreement on such a premise.

31.  For these reasons, we do not think that any of the questions proposed by the plaintiff merit leave being given to appeal to the Court of Final Appeal.  We therefore also dismiss the plaintiff’s application for leave to appeal.

Disposition and costs

32.  We therefore dismiss both Notices of Motion, and will make orders nisi that the 1^st and 2^nd defendants are to pay the plaintiff its costs in respect of the 1^st and 2^nd defendants’ Notice of Motion, and that the plaintiff should pay the 1^st to 6^th defendants’ costs in respect of its unsuccessful Notice of Motion.  We also grant a certificate for three counsel to each of the plaintiff and 1^st and 2^nd defendants, and certificate for two counsel to the 3^rd to 5^th defendants and the 6^th defendant.