JOE ZHIXIONG ZHOU v. SAIF PARTNERS II L.P. AND ANOTHER

HCCL 16/2016

[2019] HKCFI 2467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO 16 OF 2016

(Transferred from High Court Action No 1551 of 2010)

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D E C I S I O N

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1.  This application is based primarily on Order 45, rule 6 of the Rules of High Court, seeking an order that the Plaintiff do comply with an Order dated 26 June 2018 under which he is obliged to provide an account ordered in a judgment dated 14 February 2018.

2.  The Defendants say that there has been deliberate non-compliance by the Plaintiff of the Order and that by this application he be given a last chance to properly comply with the same.

3.  It is somewhat ironic that the Plaintiff is maintaining the stance that he has fully complied with the Order and he is resisting this application vigorously.  I have to say that in this situation, where the alleged infringer steadfastly declines a second chance, and that there is no suggestion that the terms of the Order are unclear, it is difficult to see why the court should exercise its discretion to impose a second chance on him.

4.  With respect, I am inclined to the view that the precious resources of the court should be expended on either contempt proceedings against the Plaintiff or in the taking of the account where it will be open to the Defendants to cross-examine the Plaintiff and to adduce evidence to falsify the account put forward by him.  Indeed, the procedure for the accounting exercise had been comprehensively provided for in the Order.

5.  I have a great deal of reservation whether the jurisdiction under Order 45, rule 6 is meant for a case where the respondent had steadfastly refused to comply with the court order.  There seems to be no reason to believe that making another order in largely the same terms as the existing one by this court would produce a positive result for the Defendants.

6.  The Defendants rely heavily on Re Ho Yuk Wah David (bankrupt) [2015] 2 HKLRD 603.  It was a case where the respondents were liquidators of a company.  It was found by the court that in respect of one of them, he was not acting reasonably in complying with the order.  Various arguments concerning the scope of the order and the entitlement of the applicant were raised.

7.  It is important to note the following dicta of To J at para 19 :

“… in considering whether to exercise the discretion under this rule, there is no need for the court to revisit the appropriateness or otherwise of its previous order. The question is simply whether in all the circumstances the respondent should be excused from performing the act under its previous order. As the court’s orders are made to be complied with, such circumstances must be very rare indeed. A possible example would be impossibility of performance as a result of a change in circumstances.”

8.  With respect, the facts of Re Ho Yuk Wah were rather different to those before this court.  I do not see the present case as one involving a very rare set of circumstances which may justify the discretionary order sought.

9.  For completeness, it should be mentioned that the cards are on the table concerning the alleged non-compliance of the Order by the Plaintiff. It is very clear that he is not accepting the second chance offered by the Defendants.  In the event of contempt proceedings, the Plaintiff may be at risk of having these matters taken into account by the court.

10.  For these reasons, I dismiss the Summons and I shall hear the parties on the costs.