BBmF CORPORATION v. DBS BANK (HONG KONG) LTD

HCA2348/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2348 OF 2006

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R U L I N G

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1.  I take the view that the court would appear foolish in these circumstances to continue an injunction that has served its purpose.  This was obtained ex parte to achieve the release of the funds.  That has been done, whether it was done on time or whether the bank was entitled to act in the way that it did remains to be seen. 

2.  This was an injunction granted as an interim measure under the umbrella of the main action, which is an action essentially for breach of contract between a client and the bank.  I can see absolutely no justification for continuing the injunction now that the moneys have been released and transferred to another bank account which the Plaintiffs hold with another bank.  Consequently, I can only see one way out today and that is by an order discharging the injunction. 

3.  I will give leave to the defendant to file a further affirmation within 14 days.  I will explain that in a moment.  The plaintiff will have leave to reply within 21 days.  I anticipate this further evidence will bear essentially on the correctness of the issue of the ex parte injunction as to whether a full disclosure was made to Hartmann J by the plaintiff.  It will have ramifications of course on the issue of costs both of today and in respect of the costs consequent upon the grant of the ex parte injunction and there is also potential for an indemnity which may be sought by the Defendant against the Plaintiff, in view of the fact that the Defendant has now got itself into trouble with the other party involved who is saying that the moneys should have been be held onto by the Defendant and not released to the Plaintiff’s order. 

4.  All of that will need to be considered, no doubt, at some length.  I hope that by adjourning all of this for argument to a date to be fixed, with half a day to be allowed, will be sufficient and that date will be fixed in consultation with counsel’s diaries, and I think I can merely reserve the costs today.  They will be considered by the judge on the next occasion.