GILLES MARC ANTOINE BARISSAT v. TAN XUEMEI

DCCJ 4669/2025

[2026] HKDC 1146

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4669 OF 2025

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BETWEEN

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DECISION

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A. INTRODUCTION

1.  This is the application by the Plaintiff (“P”) for summary judgment under Order 14 of the Rules of the District Court (Cap 336H), seeking a series of declarations concerning the beneficial ownership of shares in Loyal Harvest Limited (“Company”). The pleaded justification for the said declarations is said to be for “tax purposes in the French Republic”.

2.  The application seeks not merely positive declarations as to P’s beneficial ownership of 100 shares in the Company allegedly held on trust for him by the Defendant (“D”), but also declarations which, in substance, amount to negative declarations that he had no beneficial interest in some other 1,111,043 shares in the Company registered in the name of D’s alleged trustees and nominees.

3.  D, through her solicitor, has positively confirmed in an affidavit P’s factual case and indicated that D does not oppose the declarations sought.

4.  Notwithstanding D’s stance, the court must still be satisfied that it is appropriate to grant declaratory relief at this summary stage. The court’s jurisdiction to grant declarations is discretionary, and the mere absence of a defence, or even the consent of the opposing party, does not by itself justify the making of the declarations sought.

B. PROCEDURAL BACKGROUND

5.  P issued his Writ of Summons on 19 August 2025 and the Statement of Claim on 26 September 2025. By her Acknowledgment of Service, D indicated that she did not intend to contest the proceedings. P however did not seek a default judgment under Order 13 of the Rules of the District Court (Cap 336H) (“RDC”). Instead, P filed an Order 14 Summons on 4 November 2025 (“Summons”), supported by the affidavit of P sworn on the same date (“P’s Affidavit”). On 2 February 2026, D’s solicitor, Mr Tse To Chuen, filed an affidavit (“D’s Solicitor’s Affidavit”) confirming that D had no objection to the application for summary judgment and the relief sought and that the material facts in P’s Affidavit were true and correct.

6.  The application was first heard by Deputy District Judge Lewis Law on 9 April 2026. The learned judge expressed concerns regarding some of the requested declarations, in particular the necessity of the declarations that P had owned “only” 100 shares in the Company. Consequently, the judge granted leave for P to file further affidavit evidence within 28 days to persuade the court to grant the requested declarations and adjourned the hearing to a date to be fixed.

7.  Despite the leave granted on 9 April 2026, P filed no further affidavit. Instead, on 28 May 2026, the parties applied jointly by Consent Summons for leave to amend the Statement of Claim and the Summons to add an additional declaration (3) (which merely stated the initial allotment of the 1,111,043 shares to D). On 4 June 2026, Master J Chow granted such leave and the Amended Statement of Claim (“ASOC”), and the Amended Summons were filed on 5 June 2026. Consequently, the position at the hearing on 12 June 2026 was that I had before me only an expanded body of relief, but no new evidence from P directed at the concerns raised at the hearing on 9 April 2026 by Deputy Judge Law.

C. P’S CASE

C1. The shares

8.  The Company was incorporated in Hong Kong on 22 January 2014. Its original share capital was HKD10,000 divided into 10,000 ordinary shares of HKD1.00 each.

9.  On 4 April 2014, Victon Services Limited transferred 1 ordinary share in the Company to D, and the Company issued and allotted 99 further ordinary shares of HKD1.00 each to D, with the result that D became the registered holder of 100 ordinary shares of HKD1.00 each. On the same date, D executed a Declaration of Trust (“Declaration of Trust”) declaring that she held those 100 shares on trust for P as beneficiary absolutely. The Declaration of Trust was exhibited as an exhibit in P’s Affidavit.[1]

10.  On 5 June 2015, D and the Company entered into a Contribution Agreement (“Contribution Agreement”) by which D agreed to contribute her 8,552 shares in CVM SPF S A, a Luxembourg company, to the Company in consideration of the Company issuing 1,111,043 further ordinary shares of HKD1.00 each to her and increasing its share capital by the same amount of shares accordingly. On 25 June 2015, pursuant to the Contribution Agreement, the Company issued and allotted those 1,111,043 shares to D, with the result that D became the registered shareholder of 1,111,143 shares in total, including the 100 shares held on trust for P.[2]

11.  P then asserts three rounds of transfers of D’s shares in the Company as follows.

12.  First, on 29 December 2017, D transferred portions of her shares to seven transferees each of whom allegedly held their shares on trust for D pursuant to a declaration of trust made by each of them all dated 29 December 2017.[3] Unlike the Declaration of Trust dated 4 April 2014, however, these declarations of trust dated 29 December 2017 have not been exhibited in P’s Affidavit.

13.  Second, six of the first-round transferees transferred their shareholdings to six new transferees. Each of these new transferees allegedly held their shares as trustee for D as primary beneficiary pursuant to a declaration of trust made by each of them dated 28 October 2020.[4] These declarations of trust have again not been exhibited in P’s Affidavit.

14.  Third, it is claimed that on 10 November 2020, D transferred all her remaining shares in the Company to six transferees (including four previous transferees) allegedly as nominee shareholders for her benefit.[5] Again, no documentary evidence has been presented to support this nominee relationship.

15.  P asserts that he did not, at any material time, have any beneficial interest in any of the 1,111,043 issued ordinary shares registered in the name of D or her trustees or nominees on or before 31 December 2021.[6]

C2. P’s stated need for the declarations

16.  P avers that he has been, at all material times, a tax resident of and domiciled in the French Republic and obliged to “disclose and confirm”, inter alia, his beneficial ownership of the shareholding of the Company for the period from 1 January 2014 to 31 December 2021 for tax purposes in the French Republic.[7]

17.  At the hearing, however, Mr Shum Lok Him, solicitor for P, puts the matter for disclosure more broadly. Mr Shum submits that P requires confirmation, not only of his beneficial ownership of the 100 shares, but also of his “lack of” beneficial ownership of the other shares of the Company.[8]

18.  According to P, from January to July 2025, he repeatedly made oral requests and demands to D to state, confirm and clarify P’s beneficial interest in the shareholding of the Company for the said tax purposes, but D failed or refused to do so.[9]

D. THE DECLARATIONS SOUGHT

19.  The declarations now sought by P are as follows:[10]

(1) a declaration that as at 4 April 2014, the Defendant (as trustee) held only 100 issued ordinary shares of and in the Company upon trust for the Plaintiff (as beneficiary) pursuant to the Declaration of Trust dated 4 April 2014;

(2) a declaration that as at 25 June 2015, the Defendant (as trustee) held only 100 issued ordinary shares of and in the Company upon trust for the Plaintiff (as beneficiary) pursuant to the Declaration of Trust dated 4 April 2014;

(3) a declaration that on 25 June 2015, pursuant to the Contribution Agreement and after the Company increased its share capital by the same amount of shares, the Company issued and allotted 1,111,043 shares of HKD1.00 each of and in the Company to the Defendant. The Defendant became the registered shareholder of 1,111,143 shares of HKD1.00 each of and in the Company;

(4) a declaration that as at 31 December 2021, the Defendant (as trustee) held only 100 issued ordinary shares of and in the Company upon trust for the Plaintiff (as beneficiary) pursuant to the Declaration of Trust dated 4 April 2014;

(5) a declaration that as at 4 April 2014 the Plaintiff was the beneficial owner of 100 out of 100 issued ordinary shares of and in the Company;

(6) a declaration that as at 25 June 2015 the Plaintiff was the beneficial owner of only 100 out of 1,111,143 issued ordinary shares of and in the Company;

(7) a declaration that as at 31 December 2021 the Plaintiff was the beneficial owner of only 100 out of 1,111,143 issued ordinary shares of and in the Company;

(8) a declaration that the Plaintiff did not have, at all material times, any beneficial interest whatsoever of and in the 1,111,043 issued ordinary shares of and in the Company registered in the name of the Defendant or her trustees or nominees on or before the 31 December 2021.

E. LEGAL PRINCIPLES

20.  The court’s power to grant a declaration is conferred by Order 15, rule 16 of RDC and arises from the Court’s inherent jurisdiction. The power is discretionary. Before that discretion can be invoked, the applicant must satisfy three requirements: (i) the applicant has a real interest in the subject matter of the declaration (the “real issue” requirement); (ii) the applicant has a real interest in obtaining a declaration against the adverse party (the “real interest” requirement); and (iii) the adverse party is a proper contradictor (the “proper contradictor” requirement): Convoy Global Holdings Ltd v Kwok Hiu Kwan [2021] HKCA 1594 at §29.

21.  The court will also consider whether any useful purpose would be served by granting the declaration: Cheung Man Wai v Director of Social Welfare [2000] 3 HKLRD 255 at 260A; Equis Hong Kong Ltd v George Allen Cowan [2021] HKCFI 768, at §39.

22.  It is not the normal practice of the court to make a declaration without a trial: Wallersteiner v Moir [1974] 1 WLR 991 per Buckley LJ at 1029A. As Scarman LJ observed at 1030F, where a declaration is sought without trial, “there is the risk of irremediable injustice: the court has spoken and words cannot be recalled, even though later they be negatived”. The burden falls squarely on P to demonstrate a genuine need for the declaration now rather than after trial: Lam Kin Fong and Others v Cheung Wai Ting and Others [2022] 5 HKC 211 at §51.

23.  The rule against declarations in default or by consent is, however, a rule of practice and not of law. It will normally be followed, but the court will depart from it in circumstances where the fullest justice to which the plaintiff is entitled could not be obtained if it were denied: Patten v Burke Publishing Co Ltd [1991] 1 WLR 541 per Millett J at 544A-B; Lam Shing Shou v Lam Hon Man and Others (unrep, HCA 361/2001, 15 January 2002) at §13.

24.  As regards negative declarations in particular, the court’s approach is pragmatic and the matter is one of discretion: the court will scrutinise the claim carefully and will refuse relief where the negative declaration serves no useful purpose: Hong Kong Civil Procedure 2026 at [15/16/2] (p.478-479), citing Ho Siu Pui and Others v Yue Sheng Finance Ltd and Another (unrep, HCA 3060/2001, 27 August 2002).

25.  The court must also be attentive to the position of non-parties. As Millett J noted in Patten v Burke Publishing Co Ltd [1991] 1 WLR 541 at 544C-D, declarations of legal rights “may appear to affect third parties who are not bound by the declaration.” In Lam Kin Fong at §§64-66, the court declined to grant declarations at the default stage where it can be reasonably expected that the reliefs, if granted, would have far-reaching implications for third parties and the facts had not been tested and investigated at trial. In Pun Kwan Ying v Yeung Hoi Po [2025] HKCFI 3668 at §23, the court held that it should “be slow to grant a declaration without trial when it may adversely affect a third party’s interest.”

F. ANALYSIS

26.  There are several substantial difficulties with P’s application.

F1. Procedural defect

27.  Before considering the merits, a threshold procedural objection arises which is fatal to the application. Order 14, rule 1 of the RDC provides that an application for summary judgment may only be made where the defendant “has given notice of intention to defend the action”. This is a preliminary necessity. The Order 14 machinery is not suitable and should not be invoked where a defendant has indicated no intention to contest the proceedings: Sum Chi Chung v Tsang Kwok Hung [2022] HKCFI 166 at §§20-26; Hong Kong Civil Procedure 2026 at para. 14/1/4.

28.  In the present case, D filed her Acknowledgment of Service of Amended Writ of Summons indicating that she did not intend to contest the proceedings. P has therefore failed to satisfy a condition precedent to Order 14, rule 1. For this reason alone, the Summons is liable to be dismissed.

29.  Even disregarding technicalities, the application still faces insurmountable substantive hurdles. The principles governing the court’s discretion to grant declarations without a trial remain equally stringent, and P has not discharged his burden.

F2. Deficiencies in merits

30.  First, as explained above, on 9 April 2026, Deputy District Judge Law granted P leave to file a further affidavit specifically for the purpose of addressing the court’s concerns and explaining the background and necessity for the declarations sought. P however did not avail himself of that opportunity. The only step taken in the intervening period was a consent amendment to the pleadings and summons, adding a new corporate-history declaration. No explanation has been offered to the court at the hearing on 12 June 2026 for P’s failure to file any further affidavit.

31.  As a result, the adjournment granted has served no purpose and the evidential foundation for the application is no better than it was on 9 April 2026. The court is left with the same unanswered questions that prompted the adjournment and P has not cured the evidential deficiency identified.

32.  Second, while the court undoubtedly has jurisdiction in an appropriate case to grant declarations at the summary stage, P must show a real need for the declarations. Here, P only claims in the ASOC and in his affidavit that he is obliged to disclose and confirm his beneficial ownership of the Company’s shareholding for tax purposes in the French Republic. That is however a very general assertion. It does not explain why P cannot simply make the relevant disclosure, viz. he is the beneficial owner of the 100 shares, to the French tax authorities.

33.  There appears to be nothing on the present materials preventing P from making such disclosure. Further, should any supporting document be necessary for this purpose (which P did not indicate was required), P already possesses the written Declaration of Trust executed by D on 4 April 2014.

34.  Nor does P explain why “confirmation” from D is legally or practically indispensable. In P’s ASOC and P’s Affidavit, P claims only that he repeatedly requested D orally to state, confirm and clarify his beneficial interest for tax purposes in the French Republic and that D failed or refused to do so. He alleges that this effectively left him no alternative but to institute these proceedings. However, he does not further explain why the absence of such confirmation from D created a legal or practical impediment which prevented P from making his tax disclosure.

35.  Third, in any event, even on P’s own original premise that D had failed or refused to cooperate, the position has now materially changed. D’s Solicitor’s Affidavit filed on 2 February 2026 expressly confirmed that D had no objection to the declarations sought and that the material facts set out in P’s Affidavit were true and correct, including the assertion that P’s interest was limited to the 100 shares and that he had no beneficial interest in the 1,111,043 shares. Accordingly, P’s original pleaded complaint that D had failed or refused to state, confirm or clarify his beneficial interest appears no longer to apply. If the asserted need for declaratory relief was premised on D’s refusal to confirm the Plaintiff’s position, that premise has, on the present materials, fallen away.

36.  Fourth, a distinct and more acute difficulty arises from P’s skeleton argument,[11] where P submits that he has a real interest in D confirming not only his beneficial ownership of the 100 shares held under the Declaration of Trust, but also his “lack of beneficial ownership of the other 1,111,043 shares of the Company”. This submission goes materially beyond what is explained in the ASOC and P’s Affidavit. The pleadings and the affidavit evidence do not explain why P needs to establish, by way of judicial declaration, that he has no beneficial interest in the remaining 1,111,043 shares.

37.  At the hearing on 12 June 2026, Mr Shum sought to give evidence from the Bar table to the effect that it was because the French tax authorities did not accept P’s position that P had no beneficial interest in the 1,111,043 shares. With respect, two difficulties arise from this.

38.  P was given leave on 9 April 2026 to file further affidavit evidence to explain the background of the application. Having declined to do so without explanation, P cannot now supplement his evidence by unsworn submissions from the Bar table.

39.  Even taking P’s account of the French tax authorities’ position at face value, it reinforces rather than resolves the court’s concern: if a foreign tax authority is questioning P’s beneficial position in respect of the 1,111,043 shares, a declaration by this court, made summarily on inadequate evidence, risks affecting non-parties in a manner that the court ought not to countenance without a full trial: Patten, supra, at 544C-D and Lam Kin Fong, supra, at §§64-66.

40.  Fifth, the evidential foundation for the proposed negative declarations is significantly weaker than that for the 100 trust shares. As to the 100 shares, there is a primary written document in the Declaration of Trust. As to the 1,111,043 shares and the three rounds of subsequent transfers, P’s evidence is confined to his own assertions in his affidavit that he was “given to understand” or “informed” by the Defendant that the alleged trust and nominee arrangements existed.

41.  The difficulty is compounded by the fact that D has not personally sworn an affidavit. Instead, her solicitor has sworn an affidavit, acting on instructions, stating that D has no objection to the relief and that the material facts are accurate and correct. However, this affidavit does not include any of the purported declarations of trust allegedly executed by the seven transferees on 29 December 2017 and the six additional transferees on 28 October 2020, and any documentation executed by the six alleged nominee shareholders around 10 November 2020. In my opinion, declarations regarding beneficial interest (or the absence thereof) in a substantial amount of shares held by a network of alleged trustees and nominees, without any documentary evidence of these arrangements, extend beyond what the court can appropriately determine in a summary application.

42.  Sixth, P does not appear to have satisfied the “proper contradictor” requirement in respect of the 1,111,043 shares. P’s own pleaded case states that legal title to those shares after 29 December 2017 stands in the names of various individuals and companies. However, none of them is a party to these proceedings.

43.  The negative declaration at §14.8 of the ASOC expressly encompasses shares registered in the name of the Defendant “or her trustees or nominees”. It is difficult to see how D alone is a proper contradictor in relation to shares she no longer holds as a registered shareholder and in respect of which the alleged trust and nominee arrangements have never been proved by primary documentation. The individuals and companies who appear on the register as registered holders of those shares are, at least arguably, interested parties in any declaration that seeks to characterise their registered holdings as trust or nominee property. As aforesaid, they are not before the court.

44.  As explained above, the court should be slow to grant declarations without trial when they may adversely affect third-party interests: Pun Kwan Ying, supra, at §23; Lam Kin Fong, supra, at §64-§66. In this case, apart from the French tax authorities, the declarations may also have implications for the registered holders of the 1,111,043 shares. Those considerations weigh heavily against granting the relief summarily.

G. CONCLUSION

45.  For reasons explained above, the Summons is dismissed.

46.  In D’s Solicitor’s Affidavit, D has no objection to P’s proposal in the Summons to dispense with an order as to costs. I therefore make an order nisi to that effect.

47.  I thank Mr Shum and Mr Tse for their assistance.