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HCMP 2123/2014
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 2123OF 2014
(ON AN INTENDED APPEAL FROM HCA NO. 1585 of 2014)
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| BETWEEN |
TYG CAPITAL FUND
(IN LIQUIDATION) |
Plaintiff |
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AND |
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HILDA HOR YEE CHAN |
1st Defendant |
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DAREN KA YIP CHAN |
2nd Defendant
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TYG CAPITAL MANAGEMENT LIMITED |
3rd Defendant |
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TYG MANAGEMENT SERVICES LIMITED |
4th Defendant |
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TYG ADVISORS LIMITED |
5th Defendant |
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TYG CPAITAL MANAGEMENT (INT’L) LIMITED |
6th Defendant |
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Before : Hon Lam VP and Kwan JA
Date of Judgment : 28 August 2014
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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):
1. We refuse to grant leave to appeal. We agree with Deputy Judge Ng that the ex parte order on Shareholder Restraint should be discharged on the basis she canvassed in her judgment. We also do not see any valid basis for this court to intervene in her exercise of discretion in not re-granting the same.
2. On the submissions placed before us, it seems that the whole application hinges on one point: whether the Shareholder Restraint can be justified as being ancillary to the Mareva injunctions. Though we can see that there may be scope for arguing that the court may grant such kind of relief in an extreme case, on the facts here, in light of the undertakings given by the Defendants and the intended appointment of two professional men as independent directors to replace the existing directors and with available redress in terms of applications being made to the Cayman Islands court if necessary (and 5 days' notice rule is still in place at the moment), the need for such draconian relief is not reasonably arguable. Once appointed, the new independent directors would owe fiduciary duties to the Fund and there is no reason to assume that they would not observe such duties.
3. We are of the view that the application for leave is totally without merit and we make an order pursuant to Order 59 rule 2A(8) of the Rules of High Court that no party may request this determination to be reconsidered at an oral hearing inter partes.
4. We also order the Plaintiff to pay the costs of this leave application to the Defendants, such costs shall be taxed if not agreed.
(M H Lam)
Vice President |
(Susan Kwan)
Justice of Appeal |
Written submissions byMr C W Ling, instructed by Reed Smith Richards Butler, for the plaintiff
Written submissions by Mr William Wong SC, instructed by Bobby Tse & Co, for the 1st defendant
Written submissions by Mr Douglas Lam and Ms Sabrina Ho, instructed Lee Chan Cheng, for the 2nd defendant
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