ABDUL AZIZ ESSA v. CAPITAL GLOBE LTD AND ANOTHER

HCCW 422/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO 422 OF 2010

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J U D G M E N T

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1.  On 8 July 2011, Deputy High Court Judge Pow SC ordered that Capital Globe Limited (“the Company”) be wound up, on the petition of Mr. Abdul Aziz Essa (“the Petitioner”). The winding up order was made after a contested hearing, which took place over two days, on 17 and 28 March 2011. The costs of the winding up proceedings were ordered to be paid by the Company to the Petitioner on an indemnity basis, and a Bathampton order was made in respect of the Company’s own costs, so that the Company’s own costs are not to be paid unless and until all unsecured creditors of the Company have been paid in full.

2.  Although the winding up has not progressed very far, all the indications are that the Company is seriously insolvent.  Its creditors are therefore unlikely to receive any significant dividend in its liquidation.

3.  The Petitioner now seeks an order, pursuant to section 52A(2) of the High Court Ordinance (Cap 4), that his costs and those of the Company be paid personally by Mr Brian Lee (“Mr Lee”), a director of the Company.  Section 52A provides that:-

“(1) Subject to the provisions of rules of court, the costs of and incidental to all proceedings in the Court of Appeal in its civil jurisdiction and in the Court of First Instance, including the administration of estates and trusts, shall be in the discretion of the Court, and the Court shall have full power to determine by whom and to what extent the costs are to be paid.

(2) Without prejudice to the generality of subsection (1), the Court of Appeal or the Court of First Instance may, in accordance with rules of court, make an order awarding costs against a person who is not a party to the relevant proceedings, if the Court of Appeal of the Court of First Instance, as the case may be, is satisfied that it is in the interests of justice to do so.”

4.  At the beginning of the hearing, Mr Carolan, who appeared for the Petitioner (as he had in the winding up proceedings), indicated that in the light of the Bathampton order made by the Deputy Judge, he did not press for an order that Mr Lee should personally bear the Company’s costs.

5.  Also at the beginning of the hearing, Mr Chan (who had not previously been involved in these proceedings), appearing for Mr Lee sought leave to file a further affidavit from the other director of the Company, a Mr Duff, who had been appointed a director on 23 June 2010.  The affidavit essentially seeks to corroborate evidence given earlier by Mr Lee for the purposes of this application to the effect that he did not take decisions in relation to the winding up proceedings on his own, but that Mr Duff also participated in them.  Mr Carolan and Mr Chan agreed that I should look at Mr Duff’s evidence de bene esse, and deal with the question of admissibility when giving judgment.

6.  I have therefore read Mr Duff’s affidavit.  However, I am satisfied that I should not admit it, for a number of reasons.  First, it was filed late, only about two weeks before this hearing, without any good explanation as to why it was not filed at the appropriate time, when Mr Lee filed his own evidence.  Although Mr Lee has said that he had been unable to make contact with Mr Duff from late August until shortly before the affidavit was obtained, this seems difficult to credit.  More importantly, however, I do not think that the affidavit is worthy of any weight, as it does no more than repeat what Mr Lee says in his own affidavit, without any further detail.  No explanation is given as to how Mr Duff participated in any decisions as to the winding up proceedings; or as to what communications there were between Mr Lee and Mr Duff in relation to the winding up proceedings; no evidence of any such communications (whether by letter, fax or e-mail) was produced; and there is nothing to suggest that Mr Duff actually communicated with Mr Lee or involved himself in the aspects of the litigation that are of particular relevance to this application, to which I refer below.  As it is of no weight, there is no reason to admit it in evidence.  I therefore dismiss the application for leave to file this further affidavit, with costs to the Petitioner.

7.  I turn then to the main application – whether Mr Lee should be ordered personally to pay the Petitioner’s costs of the winding up proceedings.  For this purpose, although it is not necessary to go into the winding up proceedings in detail, it is necessary to provide some relevant background to the winding up proceedings and this application.

8.  Until early May 2010, Mr Lee and a Mr Shaquil Haque were the only directors and shareholders of the Company, each owning 50% of its shares.  On 1 April 2010, Mr Haque made a will, under which Mr Lee was to be the sole beneficiary and executor.  One month later, on 1 May 2010, Mr Haque was murdered (as was one of his colleagues, the chief financial officer of the Company).

9.  It seems that the Petitioner dealt mainly with Mr Haque in relation to his dealings with the Company.  These involved the placing of substantial funds with Mr Haque for the purpose of making various investments, involving time charters of vessels, and investments in Australian Property.  On 31 May 2010, the Petitioner’s solicitors wrote to the Company and to Mr Lee (in his personal capacity, and in his capacity as executor of Mr Haque’s estate), stating that the Company was indebted to the Petitioner to the extent of about US$12 million and A$14 million.  After discussions and correspondence had taken the matter no further, the Petitioner served a statutory demand against the Company on 9 September 2010.

10.  Faced with the imminent risk of a winding up petition being presented against it, on 7 October 2010 the Company obtained an ex parte injunction from Harris J to prevent the Petitioner from presenting a winding up petition.  The evidence in support of the application consisted of an affidavit from Mr Lee.  The affidavit sought to dispute the debt, and also to suggest that the Company was in fact solvent.  In support of the assertion that the Company was solvent, Mr Lee exhibited to his affirmation an extract from what he said were the Company’s audited accounts – a single page which set out a balance sheet that purported to show that the Company was comfortably solvent.  Mr Lee also said that since the Petitioner had made his claim, the Company had appointed forensic accountants (Messrs Cheng & Cheng) to examine the Company’s books and records, look into various aspects of the Company’s dealings, in particular the Petitioner’s claims, and to produce a report in respect of these matters.  On 15 October, however, Harris J discharged the injunction on the ground of material non‑disclosure.  He also observed that on the papers filed to date (consisting of Mr Lee’s affidavit, and an affirmation of the Petitioner filed the evening before the hearing, in which the Petitioner provided further details of his claims), there did not appear to be any good grounds on which the company could claim to dispute the alleged debt on substantial grounds.

11.  On 18 October 2010, the petition was presented.

12.  Thereafter, it would appear that Messrs Cheng & Cheng produced their report.  Although the exact date on which this was produced is not known, it seems likely that it would have been provided to the Company by about mid-November 2011, having regard to the following matters:-

(1)    the Company had been told by the forensic accountants in October 2010 that the report was expected to be produced by 15 November 2010;

(2)    the Company was invoiced a fee of HK$2 million for the work done in relation to the report, and has paid that amount;

(3)    it has never been suggested by anyone on behalf of the Company or Mr Lee that the report was not in fact produced.

13.  On 13 December 2010, the Company filed its evidence in opposition to the Petition.  This consisted of an affidavit of Mr Lee, which was in largely the same terms as that filed in support of the application for an injunction, except that there were no longer any references to the Company’s alleged solvency, and there was no mention of Cheng & Cheng’s report, which must have been in existence by that time.

14.  On 13 January 2011, the Petitioner made an application for discovery in respect of a full version of the Company’s 2009 audited accounts, of which, as I have noted, only one page of which had been exhibited to Mr Lee’s affidavit in support of the injunction application.  An order for these accounts to be disclosed to the Petitioner was made by To J on 17 February 2011. Dissatisfied with To J’s ruling, the Company sought leave to appeal from To J, which was refused on 15 March 2011, and then (by an application dated 25 March 2011) from the Court of Appeal.  No application was made for a stay of To J’s order, but the Company failed to produce the audited accounts for the trial of the winding up petition.  On 13 May 2011, the Court of Appeal dismissed the application for leave to appeal with indemnity costs.  An application by the Petitioner that the costs of the application for leave to appeal should be borne by Mr Lee personally was consented to by Mr Lee.

15.  The full version of the Company’s 2009 audited accounts was eventually produced on 24 May 2011.  It transpired that the accounts had been qualified by the auditor, on the basis that she was unable to say that they gave a true and fair view of the Company’s affairs as there was not sufficient information to verify the value the Company’s assets that it claimed to have.  The auditor noted her inability to audit the value of the Company’s main assets (investments and interests in subsidiaries and joint ventures which represented some 96.79% of its total assets).

16.  As I have said, the hearing of the petition took place on 17 and 28 March 2011.  On 8 July 2011, the Deputy Judge handed down his judgment, making the orders I have mentioned in paragraph 1 above.  He held that the Company had failed to demonstrate the existence of any bona fide dispute of substance in relation to US$2.2 million of the US$12 million, and have likewise failed to demonstrate the existence of any such dispute in relation to the A$14 million claimed by the Petitioner.  He also held that the Company was in fact insolvent.  At paragraph 87 of his judgment, he explained that he had ordered that the Petitioner’s costs to be paid on an indemnity basis because of the Company’s

“attempts to conceal relevant evidence (i.e. the forensic accountant’s final report; the 2009 Audited Financial Statements; records of periodic payments made by the Company and signed off by Brian Lee; and the suspicious amendments to the Company’s website)”

and its

“recalcitrant refusal to comply with the order of To J”.

17.  Mr Carolan submitted that the principles applicable to the exercise of the courts’ discretion to make an order for costs against a non‑party, in this case Mr Lee, was conveniently summarised in the decision of the Privy Council in Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] 1 WLR 2807.  In that case, Lord Brown summarised these principles in the following terms (at paragraph 25 of the judgment):-

“… (1) Although costs orders against non-parties are to be regarded as “exceptional”, exceptional in this context means no more than outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense. The ultimate question in any such “exceptional” case is whether in all the circumstances it is just to make the order. It must be recognised that this is inevitably to some extent a fact-specific jurisdiction and that there will often be a number of different considerations in play, some militating in favour of an order, some against. (2) Generally speaking the discretion will not be exercised against “pure funders”, described in para 40 of Hamilton v Al Fayed (No 2) [2003] QB 1175, 1194 as “those with no personal interest in the litigation, who do not stand to benefit from it, are not funding it as a matter of business, and in no way seek to control its course”. In their case the court’s usual approach is to give priority to the public interest in the funded party getting access to justice over that of the successful unfunded party recovering his costs and so not having to bear the expense of vindicating his rights. (3) Where, however, the non-party not merely funds the proceedings but substantially also controls or at any rate is to benefit from them, justice will ordinarily require that, if the proceedings fail, he will pay the successful party’s costs. The non-party in these cases is not so much facilitating access to justice by the party funded as himself gaining access to justice for his own purposes. He himself is “the real party” to the litigation, a concept repeatedly invoked throughout the jurisprudence … Some reflection of this concept of “the real party” is to be found in CPR r25.13(2)(f) which allows a security for costs order to be made where “the claimant is acting as a nominal claimant”. (4) Perhaps the most difficult cases are those in which non-parties fund receivers or liquidators (or, indeed, financially insecure companies generally) in litigation designed to advance the funders own commercial interests. …”

18.  Lord Brown then went on to refer to a number of authorities dealing with that last situation, and went on to conclude (at paragraph 29 of the judgment) that:-

“In the light of these authorities their Lordships would hold that, generally speaking, where a non-party promotes and funds proceedings by an insolvent company solely or substantially for his own financial benefit, he should be liable for the costs if his claim or defence or appeal fails. As explained in the cases, however, that is not to say that orders will invariably be made in such cases, particularly, say, where the non-party is himself a director or liquidator who can realistically be regarded as acting rather in the interests of the company (and more especially its shareholders and creditors) than in his own interests.”

19.  In Hong Kong, the Court of Final Appeal has also expressed the view that that while costs should generally not be ordered against a pure funder, a self-interested funder should normally be ordered to pay the costs of the funded litigant’s successful opponent – see The Liberty Container (2007) 10 HKCFA$ 256, per Bokhary J at paragraphs 30-33 of the judgment.

20.  Mr Carolan submitted that in this case, the following factors supported the making of an order that Mr Lee should bear the costs personally:-

(1)    Mr Lee had always been at least a 50% shareholder of the Company, and since Mr Haque’s death was effectively its sole shareholder (as he was the beneficiary of Mr Haque’s estate).  He had also made loans to the Company (by 2010, these amounted to over HK$18 million).  He therefore had a direct financial interest in the Company, and in avoiding having a winding up order made against it.

(2)    Mr Lee was in control of the Company, notwithstanding that Mr Duff was also a director, as Mr Duff was not resident in Hong Kong, did not (on Mr Lee’s own evidence) appear to be readily contactable.  This conclusion was also supported by the fact that Mr Lee was unable to produce any documentation to back up his assertion that Mr Duff actively participated in the decision making process in respect of the Company’s defence of the petition.

(3)    Mr Lee personally funded the Company’s defence of the petition, and its operational expenses after the presentation of the petition.

(4)    It was unreasonable for Mr Lee to have caused the Company to contest the petition, particularly when Harris J had indicated that the evidence then available was not enough to demonstrate the existence of a bona fide dispute on substantial grounds, or even a strong possibility of such a dispute arising, and the Company had not put forward any further or additional evidence in opposition to the petition (Mr Lee’s 3^rd Affidavit made for this purpose was, as I have noted, much the same as his 1^st Affidavit which had been made in support of the injunction application, which Harris J had considered and found insufficient).

(5)    Further, it was improper for Mr Lee to have caused the Company to contest the petition, when he knew that the Company was unable to meet costs orders that might be made against it and was almost certainly insolvent.  This must have been apparent from, in particular:-

(a)   the audited accounts for 2009, which were qualified as I have indicated, which he had suppressed when applying ex parte for the injunction, and had refused to produce for the purposes of the winding up petition, notwithstanding that he had been ordered to do so; and

(b)   The fact that the assets in respect of which the qualification was made included holdings in six Australian companies, four of which (being companies of which Lee was the sole director) defaulted on bank loans on 27 October 2010, and in consequence went into receivership on 31 January 2011.

(6)    It was also improper for Mr Lee to have caused the Company to resist the petition, when he must have known that it had no real basis for disputing substantial parts of the debts claimed by the Petitioner.  It was submitted that this should be inferred from the unexplained failure to disclose the Cheng & Cheng report, which should therefore be taken to be adverse to (or at least not supportive of) the Company’s position that the debts were disputed in good faith on grounds of substance.

(7)    Mr Lee, as the person responsible for the Company’s resistance to the petition had acted improperly by:-

(a)   causing it to flout To J’s order for discovery, almost certainly with a view to covering up the fact that he had misled the court in the injunction application by asserting that the Company was solvent and putting forward the Company’s balance sheet in support of the assertion, while suppressing the auditor’s report, which would have revealed that the accounts could not be safely relied upon for that purpose; and

(b)   concealing the evidence referred to by Deputy Judge Pow SC in paragraph 87 of his judgment.

21.  Mr Chan, however, submitted that the court should be slow to make an order requiring Mr Lee to bear the costs personally.  In response to Mr Carolan’s submissions, he argued:-

(1)    The fact that Mr Lee was interested in the Company’s financial well-being was not a sufficient reason for making such an order.  If this were a sufficient reason, the consequence would be that the doctrine of limited liability would be seriously eroded.  In support of this proposition, he relied heavily on the views expressed by Millett LJ (as he then was) in Metalloy Supplies Ltd (in liquidation) v MA (UK) Ltd [1997] 1 WLR 1613, at p 1620 and by Lloyd LJ (as he then was) in Taylor v Pace Developments [1991] BCC 406.

(2)    There was no reason to disbelieve Mr Lee when he said that Mr Duff had actively participated in the decision making process in relation to the defence of the petition, and his evidence in this respect should be accepted.

(3)    That Mr Lee had funded the proceedings was also not a sufficient reason to make a personal costs order against him, having regard to the authorities he relied upon for his first proposition (see sub-paragraph (1) above).

(4)    It was not unreasonable or improper for Mr Lee to have taken the view that the petition should be defended, since the Petitioner’s dealings had all been with Mr Haque, Mr Lee had no personal knowledge of the dealings, and Mr Lee had to look into the matter before he could reasonably be expected to come to a view on it.  Although Mr Lee had sought information and substantiation of the claims from the Petitioner, none was forthcoming, and it was not until the first day of the petition hearing that the Petitioner demonstrated (through Mr Carolan’s submissions) how the material he had included in his evidence showed that funds had been placed with the Company and that the Company was liable to the Petitioner to the extent found by the Deputy Judge.  In the circumstances, it could not be said that it was improper to resist the petition until well into the trial of it, by which time substantially all of the Petitioner’s costs would already have been incurred.

(5)    The inferences as to what Mr Lee knew mentioned in paragraph 20(5) and (6) above should not be drawn.  Further, in relation to the debts relied on by the Petitioner in the statutory demand, not all such debts were found to be debts as to which there was no dispute – the Petitioner had himself (through his counsel) accepted at the hearing that there might be a defence in relation to about half of the US$12 million claimed, and the Deputy Judge had found that of the balance, there was no substantial dispute in relation to only US$2.2 million.

(6)    The failure to disclose the accounts had been premised on legal arguments put forward by leading counsel then instructed for the Company that the accounts were not relevant to the proceedings, and it should not be inferred that the failure to produce them was for the purpose suggested.  As to the Cheng & Cheng report, the view taken was that it was privileged and so need not be put forward.  There was therefore no impropriety in the Company’s conduct of its defence of the petition.

22.  So far as the points relating to the position of directors and shareholders and their funding of a company’s involvement in litigation are concerned (the first and third points in contention), it seems to me that the position is dealt with by the decision of the Privy Council in the Dymocks case.  There, specific reference was made to the Metalloy case, and to Millett LJ’s observations (see paragraph 28 of Lord Brown’s judgment in Dymocks).  The Privy Council clearly recognised, at paragraph 29 of the judgment (cited above), that the position of directors and shareholders who fund litigation in which their company is involved deserves careful consideration.  The broad question is whether the director or shareholder should be regarded as acting in the interests of the company (more particularly those of shareholders and creditors) than in his own interests.  In considering this, and in considering whether or not a personal costs order should be made, it will also be relevant, as has been emphasised in many of the authorities (including Metalloy), to consider whether or not the there has been any impropriety in relation to the litigation, for which the director or shareholder is to be regarded as responsible.

23.  Mr Carolan, accepted, I think that the mere fact that Mr Lee was the sole shareholder of the Company was not necessarily sufficient.  He maintained, however, that the fact that Mr Lee had funded the litigation for the Company could justify the making of a personal costs order against him.

24.  I am not sure that it does, or at least, not necessarily in every case. In this case, the Company was, as a result of the winding up petition, unable to make use of its own funds (absent a validation order).  In those circumstances, for Mr Lee to fund the Company in its defence of the petition would not necessarily show that he was doing so for his own purposes, rather than those of the Company.

25.  However, I am satisfied that in the circumstances of this case, it was unreasonable and improper for the Company to have taken the course that it did in relation to the litigation, and that there has been real impropriety in the way in which the litigation has been conducted (the fourth to sixth points in contention), and that in these circumstances, it would be right to regard Mr Lee as not having acted purely for the benefit of the Company.

26.  First, I do not think that Mr Chan’s submission that the Company (and Mr Lee) could not have known whether or not the Petitioner’s claim was justified until everything was explained at the hearing of the petition is well-founded.

27.  While it might have been the case that, at the initial stages of the Petitioner’s demand for repayment, Mr Lee might have been justified in seeking to establish whether or not the claims were genuine (even though he had accepted that he had signed off on some payments made to the Petitioner in the past), this did not remain the position thereafter.  By October 2010, the material on which the Petitioner succeeded at the trial of the petition was made available to the Company and Mr Lee under the Petitioner’s affirmation seeking the discharge of the injunction.   From this point, the Company had the material from which it could ascertain the position in relation to the Petitioner’s claims – material on the basis of which Harris J had expressed the view that there did not appear to be any substantial dispute as to the claims, and which the Company never supplemented in any meaningful way.

28.  Moreover, the Company had engaged Cheng & Cheng to review its books and records, and specifically to look into the Petitioner’s claims.  Cheng & Cheng provided their report on these matters to the Company shortly after the petition was presented, but as we have seen, that report never saw the light of day.  It is well-established that where a party has material which it chooses not to disclose, the court is entitled to draw an inference against that party that the material in question is adverse to, or at least not supportive of, the party’s case.  Here, having itself mentioned the fact that it had engaged forensic accountants to look into the Petitioner’s claims in the context of the injunction application, one would have expected the Company to put the results of that investigation forward if it was likely to be of any assistance to it.  No explanation has been provided for the Company’s failure to do this.  The suggestion by Mr Chan that the report was privileged is neither here nor there – all that this meant was that the Company could not be compelled to disclose the report; it could have chosen to disclose it had it wished to, and no doubt would have done so had it been supportive of its position.  I am therefore satisfied that I can, and should, infer from its non-production that it would not have advanced the Company’s case.  Mr Lee must have had sight of the report (there is certainly no suggestion that he did not), and therefore must be taken to have realised that the Company was not in a position to refute the Petitioner’s claims.

29.  In this context, I do not think that there is any merit in Mr Chan’s submission that not all of the Petitioner’s claims were found to be claims in respect of which there was no bona fide dispute of substance.  This ignores the fact that the claims which Deputy Judge Pow SC concluded could not be disputed were far in excess of the amount required for the presentation of a petition, with the Australian Dollar indebtedness alone amounting to A$14 million.

30.  The position in relation to insolvency is even clearer.  The assertion that the Company was solvent and profitable, which it was sought to back up by the production of the balance sheet in isolation, was one which could not properly have been made by Mr Lee in his 1^st Affidavit, and involved him in putting forward a misleading partial picture to the court.  Mr Lee has never provided any explanation at all for the selective disclosure of the balance sheet in isolation, without disclosing the rest of the audited accounts (which must have been in his possession) which would have shown that the balance sheet was not something that could be relied upon as being a fair reflection of the Company’s financial position.  This in itself suggests strongly that Mr Lee must have been aware that the company was insolvent, or at the very least in a precarious financial position, as early as the beginning of October 2010.  The fact that some of its subsidiaries or joint ventures defaulted on their obligations to their bankers shortly thereafter can only have made the position even more clear to Mr Lee.

31.  In these circumstances, I consider that the Company’s defence of the petition was, from the outset, unjustified and that Mr Lee must be taken to have been aware of this.

32.  The position is rendered worse, I think, by the deliberate decision of the Company to refuse to comply with the order of To J in relation to production of its accounts.  Although Mr Chan argued that the Company had been advised that the accounts were not relevant, and that this was the reason for the appeal, I fail to see how audited accounts of a company could be irrelevant when one of the issues for determination is the Company’s solvency (or lack of it).  I accept Mr Carolan’s submission that the right inference to draw is that the reason for this refusal must have been because disclosure of the accounts would have demonstrated that Mr Lee had tried to mislead the court with his incomplete disclosure of the accounts in the injunction application.

33.  These are all matters for which Mr Lee, who was running the Company’s defence of the petition, was responsible.  I cannot accept his evidence that Mr Duff participated fully in the defence of the petition.  Nothing concrete in the way of correspondence in any form has been put forward to substantiate this bare assertion.  Given Mr Duff’s absence in Australia at all material times, it seems highly improbable that he was in fact so involved.  Moreover, Mr Lee’s evidence as to Mr Duff’s involvement is in the most general of terms, and there is nothing to suggest that Mr Duff was somehow also responsible for the unreasonable and improper conduct of and in relation to the proceedings.  Even if he was, this would not assist Mr Lee – all that it would mean would be that Mr Duff might be at risk of having a personal costs order made against him as well.

34.  In all of the circumstances, I am satisfied that this is an appropriate case for the making of an order that Mr Lee should personally bear the Petitioner’s costs in relation to the winding up proceedings, as it is clear that Mr Lee has caused the Company to defend the petition when there was no justification for doing so from about or shortly after the time when the petition was presented.  However, as the costs of preparation and presentation of the petition would have been unavoidable, I shall order that Mr Lee should bear the Petitioner’s costs of the winding up proceedings insofar as they were incurred after 18 October 2010 (such costs to be assessed on the indemnity basis, as ordered by Deputy Judge Pow SC).

35.  As Mr Lee has been unsuccessful in his resistance to the application, he must also bear the Petitioner’s costs of this application.  Having regard to the serious failures in relation to the Company’s conduct of the petition proceedings which I have referred to above (and which were referred to by Deputy Judge Pow), for which Mr Lee was clearly responsible, I consider that such costs should also be taxed on the indemnity basis if a taxation is required.  I shall also certify the matter as fit for two counsel.  I therefore make a costs order nisi that Mr Lee is to pay the Petitioner’s costs of this application, including any reserved costs and the costs of the unsuccessful application to admit Mr Duff’s affidavit, on an indemnity basis, with certificate for two counsel.