HEBEI ENTERPRISES LTD AND OTHERS v. LIVASIRI & CO (A FIRM) AND OTHERS

HCA20094/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 20094 OF 1998

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DECISION

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1. This is an application by the plaintiffs, pursuant to paragraph 4 of the order that I made on 1 June 2006 (“the Order”), for an order that the date of 6 and 7 November 2006 set down for the hearing of the plaintiffs’ application under Order 49B against Mr Fan and Miss Livasiri of the 1^st defendant be maintained in effect or be otherwise restored and that the plaintiffs be at liberty to proceed with the oral examination under Order 49B against them, notwithstanding paragraph 3 of the Order.

2. By the Order, I granted a general stay of execution of the judgment that I made against the defendants, ordered Mr Fan and Miss Livasiri, of the 1^st defendant to give full and frank disclosure of each of their financial affairs, including the supply of copies of the documents mentioned in paragraph 2 of Master Kwan’s order dated 1 April 2006; and ordered that the hearing dates of 6 and 7 November 2006 set down for the plaintiffs’ application under Order 49B against Mr Fan and Miss Livasiri be vacated after 90 days thereof unless the court otherwise orders upon application by other party.  I also gave the parties liberty to apply for variation of the order or for further order or relief as circumstances may justify.

3. As I understand the plaintiffs’ application, it is premised on two grounds.  Firstly, Mr Fan and Miss Livasiri have failed to make full and frank disclosure of each of their financial affairs pursuant to paragraph 1 of the Order; and secondly there is provision in the order for liberty to apply and the plaintiff is as of right entitled to proceed with the oral examination under Order 49B.

4. I will first deal with the failure to disclose.  There are two classes of documents which the plaintiffs said Mr Fan and Miss Livasiri have failed to disclose.  The first class of documents relate to the insurance policy of the firm, that is the 1^st defendant.  What they want is the entire documentation in relation to the professional indemnity insurance coverage and the communication and correspondence between the 1^st defendant and the insurers.  That can be seen in paragraph 6(j) of the 10^th affidavit of Mr Lau Kar Wah dated 27 October 2006.  I have doubt if the plaintiffs are entitled to the entire documentation in relation to the professional indemnity.  It should be borne in mind that information of the financial affairs of Mr Fan and Miss Livasiri is required for the purpose of facilitating execution of judgment. 

5. On the evidence before me and for the present purposes, I agree with Mr Smith that the documentation disclosed so far will be sufficient for the purpose of discharging their duty to make full and frank disclosure under paragraph 1 of the Order.

6. The second class of documents is the professional receipts of the 1^st defendant back to the so-called “boom years”, when the dispute of this action arose.  As I have said, the information that Mr Fan and Miss Livasiri are ordered to disclose is there to enable the plaintiffs to execute the judgment when the time comes.  The information disclosed must be current or recent.       I do not think it is reasonable to ask, at least on the material now before me, Mr Fan and Miss Livasiri to disclose the professional receipts back in the 1990s.  In any event, Miss Livasiri, having ceased to be a partner in 1999, will not be able to provide the documents requested by the plaintiffs. 

7. For these reasons, I am not satisfied that the plaintiffs have made out a case of failure to make full and frank disclosure under paragraph 1 of the Order against either Mr Fan or Miss Livasiri.

8. I then turn to the second ground that the plaintiffs rely on to justify this application.  It should be borne in mind that under the Order, there is a general stay of execution.  It is not right to say that in light of the general stay of execution, though interim in nature pending appeal, the plaintiffs are as a matter or right entitled to proceed with the oral examination under Order 49B.  Even there is liberty to apply, the plaintiffs must demonstrate that there is a change of circumstances since the grant of the Order that justifies an order to be made to allow them to proceed with the oral examination.  I am not satisfied that such circumstances exist on the evidence before me. 

9. For these reasons, the application is refused.