XCHRX DARYL MARK O'SHAUGHNESSY v. DAVID WILLIAM GUNSON AND ANOTHER

HCA 9218/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 9218 OF 1999

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J U D G M E N T

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1. This is the 1st Defendant's application for the discharge of the Prohibition Order made on 1 March 2000 and for certain related matter.

2. The Plaintiff commenced this action on 4 June 1999 against the 2 Defendants alleging that they had in breach of their fiduciary duty paid away and/or converted the Plaintiff's property, namely, AUS$238,803.50. The 1st Defendant is alleged therein to be a solicitor practising in Hong Kong and a director of the 2nd Defendant. The 2nd Defendant is alleged to be in the business of providing trust services and has acted as a trustee of a trust fund.

3. On 30 June 1999, the 1st Defendant took out an application seeking in effect an order that the service of the Writ be set aside or the action be stayed on the ground of forum non convenience.

4. There were also other interlocutory applications including the Plaintiff's application for summary judgment and application for the defence of the 1st Defendant to be struck out and the 1st Defendant's application for the Statement of Claim to be struck out. The 3 applications were heard by Cheung J on 7 January 2000 and were adjourned by consent upon terms including the 1st Defendant's undertaking to the Court that he would "within 14 days pay or cause to be paid unconditionally ... the sum of AUS$246,090.94 ... to Byrne Services Ltd., as agent for the Plaintiff's new pension fund trustees ...".

5. On 1 March 2000, the Plaintiff took out 2 ex parte applications: -

(a) for the grant of leave to commit the 1st Defendant for contempt of court for failing to comply with his said undertaking;

(b) for the extension of a Prohibition Order made by Jackson J on 2 February 2000.

These 2 matters came before me. Leave was granted for the committal proceedings and the Prohibition Order against the 1st Defendant was extended for 1 month.

6. On 8 March 2000, the 1st Defendant took out an application asking for: -

(a) the Prohibition Order made on 1 March 2000 be discharged;

(b) the hearing of the Plaintiff's application for taxation of costs to be heard on 16 March 2000 be adjourned to a date to be agreed between the Plaintiff and the 1st Defendant.

7. In support of his application, Mr Gunson raised essentially 3 matters: -

(a) matters which relate to the merits of the Plaintiff's claim and the Defendant's defence;

(b) the Plaintiff's evidence in support of the application for Prohibition Order contained nothing more than mere assertions that he would evade proceedings or judgments in this action;

(c) he has a personal reason to leave Hong Kong for a short period.

8. In relation to point (a), I do not consider that the materials placed before me are such that this point can be satisfactorily determined one way or the other save that I consider that it is a factor which weights in the Plaintiff's favour in the grant or continuation of the Prohibition Order made on 1 March 2000.

9. In relation to point (b), Mr Pirie informed/reminded me of the following: -

(a) the 1st Defendant has made about 30 promises to pay the money up to now, none of which has materialized;

(b) he is currently on police bail;

(c) he is (at least) prima facie in breach of an undertaking he had given to the Court.

10. I understand Mr Pirie to be contending that the integrity of the 1st Defendant is in question and none of the matters he put forward should be taken on face value. I notice that the 1st Defendant is a practising solicitor and find the view taken by the Plaintiff regarding him to be rather disturbing. However, having considered the nature of the claim and the history of the proceedings, I am afraid I have to agree with the Plaintiff on this point. I therefore find that the Plaintiff was justified in contending that there is a risk of evasion of the proceedings and/or judgment herein.

11. As regards the 1st Defendant's point (c) above, I do not find the reason given to be of such weight as to justify the discharge of the Prohibition Order.

12. For the above reason, the 1st Defendant's application to discharge is dismissed. I was given to understand that para. 2 of the 1st Defendant's summons is related to para. 1 thereof, i.e. if the Prohibition Order is discharged, the 1st Defendant will need to leave Hong Kong for England and thus would be unavailable for the hearing on 16 March 2000. Since I refused to discharge the Prohibition Order, there is no need for an order in terms of para. 2 of the 1st Defendant's summons. No order is therefore made thereon.