SRC INTERNATIONAL (MALAYSIA) LTD (a company incorporated in accordance with the laws of the British Virgin Islands) (In Liquidation) v. BANK JULIUS BAER & CO. LTD

HCA 777/2021

[2026] HKCFI 4872

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 777 OF 2021

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D E C I S I O N

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1.  On 30 June 2026, I dismissed the Defendant’s application to order the Plaintiff to provide answers to the requests for further and better particulars of the Re‑Amended Statement of Claim (“FBP Application”): Decision at [54] to [68] in [2026] HKCFI 3903.  By its summons dated 13 July 2026 (“Summons”), the Defendant applied for leave to appeal my order to dismiss the FBP Application in respect of Requests 1.3, 1.5, 1.7 to 1.10, 2.1, 2.4 and 2.5.  Directions were subsequently given for the parties to file written submissions and for the Summons to be determined on the papers.

2.  The Defendant’s proposed grounds of appeal set out in its draft notice of appeal attached to the Summons were grouped in its written submissions under 4 broad grounds.  The Defendant submitted that leave should be granted because its intended appeal has a reasonable prospect of success.

3.  The Defendant’s proposed ground 1 is said to arise out of [57] and [62] of the Decision where the court is said to have “erred in principle”.  The two paragraphs were part of the court’s reasons to refuse Requests 1.3, 1.5, 1.7 to 1.10, 2.4 and 2.5.  Essentially, having regard to (1) the matters out of which the requests are said to arise, (2) the nature of the Plaintiff’s claim and (3) the Defendant’s response thereto, the court refused the requests on the basis that they were not considered necessary under RHC O.18 r.12(3B) and/or were essentially evidence.  The well-established principles on pleading fraud and conspiracy were not engaged as the Plaintiff does not advance any case of fraud and conspiracy against the Defendant.  Contrary to the Defendant’s submission, it is unclear how [57] of the Decision can be said to be “perilously close to subverting the burden of proof”.  Further, the bulk of the submissions now advanced by the Defendant to support this proposed ground (and the other grounds) are merely repetitions of those which have already been considered and rejected.  In these circumstances, I do not consider that the Defendant has demonstrated reasonable prospects of success in its proposed ground 1.

4.  As far as its proposed ground 2 is concerned, the Defendant submitted that it arises out of [57] and [58] of the Decision, where the court is said to have “erred in principle”.  The Defendant has referred to various authorities to suggest that a plaintiff must prove the existence of a fraud to succeed in a claim for breach of the Quincecare duty.  However, no suggestion was in fact made in [57] and [58] of the Decision that the requirement on the part of the Plaintiff to prove the alleged fraud or the alleged conspiracy in the present case has been dispensed with.  As emphasised in those paragraphs, it is not part of the Plaintiff’s case that the Defendant was involved in the alleged fraud or the alleged conspiracy.  It is therefore difficult to understand how the court’s conclusion in the present case (that the Defendant has failed to demonstrate the necessity of the requested particulars) is said to be contrary to the principles laid down in the authorities to which the Defendant referred.  I do not believe that the Defendant has demonstrated reasonable prospects of success in respect of its proposed ground 2.

5.  The Defendant’s proposed ground 3 relates to [61] of the Decision.  The Defendant submitted that the court held in that paragraph that the Plaintiff “only needs to show that the Payment were made without the actual authority of the signatories of the Account, namely Faisal and Suboh”.  I do not believe this is what was held in [61].  As explained in that paragraph and other paragraphs in the Decision, the court did not think that the Plaintiff should be ordered to provide further particulars to Request 2.1 to explain why the relevant payments were described as fraudulent misrepresentation of properties.  In my view, no reasonable prospects of success in respect of the proposed ground 3 have been shown.

6.  The Defendant’s proposed ground 4 seeks to challenge the court’s conclusion in [62] that Requests 2.4 and 2.5 are requests for evidence.  The Defendant rehashed the same arguments advanced at the substantive hearing to contend otherwise.  For the same reasons given in the Decision, I do not agree that the Defendant has demonstrated reasonable prospects of success in respect of this proposed ground.

7.  Accordingly, the Summons is dismissed.  I make an order nisi that the costs of and occasioned by the Summons are to be paid by the Defendant to the Plaintiff to be summarily assessed.  I also make the following directions: (1) the Plaintiff is to lodge and serve a statement of costs within 3 days from the date of this Decision, (2) the Defendant is to lodge and serve a statement of opposition within 5 days thereafter, and (3) the Plaintiff is to lodge and serve a statement of reply within 5 days thereafter.