NIKKEI AMERICA, INC AND ANOTHER v. AULIC INDUSTRY LTD AND OTHERS

HCA 145/2020

[2021] HKCFI 2032

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 145 OF 2020

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BETWEEN

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D E C I S I O N

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A. INTRODUCTION

1.  The 1^st and 2^nd Plaintiffs (“the Plaintiffs”) are wire fraud victims. After a series of mistaken payments totalling some USD29.8 million, they obtained final judgment for repayment against the non-appearing Defendants, including the 34^th Defendant, on 24 July 2020 (“the Final Judgment”). 

2.  By its summons of 2 February 2021 (“the Intervention Summons”), the Intended Intervener primarily seeks to set aside a garnishee order absolute obtained on 2 November 2020 by the Plaintiffs against the 34^th Defendant based on the Final Judgment (“the Plaintiffs’ Absolute GO”).

3.  The Plaintiffs and the Intended Intervener have each in fact obtained judgments and garnishee orders against the 34^th Defendant.  But the Plaintiffs have essentially been ahead of the Intended Intervener at every stage, and have already obtained payment from the garnishee bank.

4.  The Intended Intervener’s essential position is that the Final Judgment is “invalid” and that they are entitled to have it set aside, and with it the Plaintiffs’ Absolute GO.

5.  At the initial hearing on 26 February 2021, I directed that the Intended Intervener’s application proceed by paper disposal.

6.  I now have the following written submissions to hand:

(1) Skeleton Submissions of the Plaintiffs dated 24 February 2021 (filed in advance of the 26 February 2021 hearing).

(2) Intended Intervener’s Submissions dated 5 March 2021.

(3) 2^nd Skeleton Submissions of the Plaintiffs dated 12 March 2021.

(4) Skeleton Submissions of the 7^th Garnishee, China CITIC Bank International Limited (“CITIC”) dated 12 March 2021.

(5) Intended Intervener’s Reply Submissions dated 16 March 2021.

7.  Having considered all the materials before me, I find that the Intended Intervener has no proper basis for challenging the Plaintiffs’ Absolute GO, and that its application falls to be dismissed.

8.  In what follows, I will briefly elaborate on the factual and procedural background (Section B) before setting out the main reasons for my decision (Section C).

B. BACKGROUND

9.  The background facts are essentially uncontested.  The following summary is largely adapted from the submissions of Mr Nicholas Hunsworth, Solicitor Advocate for the Plaintiffs.

(1) The Plaintiffs’ Claims against the 34^th Defendant

10.  In September 2019, the Plaintiffs fell victim to a wire fraud and made a series of mistaken payments totalling over USD29.8 million (“the Mistaken Payments”) to five bank accounts in Hong Kong (“1^st Layer Accounts”) as a result of the fraud.

11.  After the fraud was discovered, the Plaintiffs obtained a Mareva injunction against the holders of the 1^st Layer Accounts (“1^st Layer Recipients”) and commenced HCA 1914/2019 in October 2019 against the 1^st Layer Recipients to recover the Mistaken Payments.

12.  The Plaintiffs also obtained a banker’s book order in HCA 1914/2019 (“1^st Layer Disclosure Order”) against the banks of the 1^st Layer Recipients.  Pursuant to the 1^st Layer Disclosure Order, the Plaintiffs obtained the records (“Bank Records”) of deposits into and withdrawals from the 1^st Layer Accounts from when the relevant Mistaken Payments were made. 

13.  The Bank Records revealed that most of the Mistaken Payments were transferred from the 1^st Layer Accounts to dozens of other bank accounts (“2^nd Layer Accounts”) almost immediately after they were deposited into the 1^st Layer Accounts.

14.  The Defendants are holders of some of the 2^nd Layer Accounts. In January 2020, the Plaintiffs obtained a Mareva injunction against the Defendants and commenced these proceedings to recover the traceable proceeds of the Mistaken Payments.

15.  As earlier noted, the Plaintiffs obtained the Final Judgment against all the non-appearing Defendants on 24 July 2020 – the majority of Defendants, the 34^th Defendant included, having failed to acknowledge service of the Writ.

16.  Upon the Plaintiffs abandoning their claims for declarations and proprietary relief, the Final Judgment is a monetary judgment for repayment of the respective sums received by the Defendants from the 1^st Layer Accounts.

17.  The Plaintiffs subsequently commenced garnishee proceedings under the present action (HCA 145/2020) (“the Plaintiffs’ Garnishee Proceedings”) to enforce the Final Judgment. In respect of the 34^th Defendant:

(1) The Plaintiffs obtained a garnishee order nisi (“the Plaintiffs’ GO Nisi”) against CITIC on 20 August 2020.

(2) The Plaintiffs’ GO Nisi was served on CITIC and the 34^th Defendant in accordance with the Rules of High Court.  By its letter dated 16 October 2020, CITIC provided the details and balances in relation to the 34^th Defendant’s accounts. CITIC raised no objection to the Plaintiffs’ Garnishee Proceedings.

(3) The hearing of the Plaintiffs’ GO Nisi was held on 2 November 2020. The Plaintiffs’ Absolute GO was granted against CITIC in respect of the 34^th Defendant’s accounts at the hearing.

(4) The Plaintiffs subsequently received payment from CITIC made pursuant to the Plaintiffs’ Absolute GO on or around 1 December 2020.

(2) The Intended Intervener’s Claims against D34

18.  The Intended Intervener, Shenzhen Sunlife Import & Export Co., Limited (深圳鑫鴻光進出口有限公司), says that it is in the business of renewable energy.  Despite the similarities between the names of the Intended Intervener and the 34^th Defendant (the latter’s English and Chinese names being, respectively, Sunlife Import & Export Co., Limited and (鑫鴻光進出口有限公司), the Intended Intervener says there are no links between the two companies.

19.  The Intended Intervener alleges that on 7 October 2019, it placed an order for solar panels with the 34^th Defendant. On 18 October 2019, it paid the purchase price for the solar panels in the sum of USD394,656.80 (“the Deposit”) into the 34^th Defendant’s account with CITIC (“the Account”).

20.  Following the apparent non-delivery of the solar panels, the Intended Intervener commenced HCA 302/2020 on 13 March 2020 and obtained a default monetary judgment against the 34^th Defendant on 3 July 2020.

21.  The Intended Intervener then commenced garnishee proceedings against CITIC in respect of the 34^th Defendant to enforce its judgment. The Intended Intervener obtained a garnishee order nisi on 22 September 2020, and a garnishee order absolute (“2^nd Absolute GO”) on 30 November 2020.

22.  It is common ground that CITIC did not at any stage inform the Intended Intervener of the Plaintiffs’ GO Nisi.  Nor did CITIC inform the Court in the present proceedings of the garnishee orders obtained by the Intended Intervener in HCA 302/2020.

(3) The Intended Intervener’s Application and the State of Play

23.  By the Intervention Summons, the Intended Intervener now seeks orders that:

(1) it be joined as a party to the present action, i.e. the Plaintiffs’ Garnishee Proceedings;

(2) (by way of declaration), the Plaintiffs have no proprietary interest in the Deposit;

(3) The Final Judgment be set aside;

(4) The Plaintiffs’ Absolute GO be set aside;

(5) The Plaintiffs do pay all sums received from CITIC pursuant to the Plaintiffs’ Absolute GO back to CITIC; and

(6) CITIC do pay all sums returned by the Plaintiffs to the Intended Intervener pursuant to the 2^nd Absolute GO.

24.  The Plaintiffs submit that all the above orders should be refused with costs against the Intended Intervener.

25.  On the basis that the dispute is between the Intended Intervener and the Plaintiffs, CITIC essentially takes a neutral stance at this stage, while emphasising that (in its submission) there is no requirement under the Rules of High Court that imposes any positive duty on a garnishee to inform the Court of a third party’s claim.

C. REASONS FOR REFUSAL

26.  The Intended Intervener’s application is in my view clearly unsustainable.

(1) Judgment creditors and first-to-fruits

27.  Both the Plaintiffs and the Intended Interveners are unsecured judgment creditors of the 34^th Defendant.

28.  Mr Hunsworth drew attention to the following general legal principles as applicable to competing judgment creditors:

(1) The starting point is that a judgment creditor is entitled to enforce the judgment he has secured against the judgment debtor: Credit Lyonnais v SK Global Hong Kong Ltd CACV 167/2003 [2003] 4 HKC 104 at §8(1).

(2) The only situation in which the courts will take into account broader interests when considering the question of execution is where the judgment debtor is in the process of being wound up or where liquidation or some form of scheme of arrangement is imminent.  Other than such situations, it would not be a correct exercise of the Court’s discretion to take into account the interests or wishes of non-parties at the expense of those of the judgment creditor: Credit Lyonnais v SK Global Hong Kong Ltd (above) at §8(4)-(5).

(3) In the context of garnishee proceedings, a “first in time” principle applies. As Lord Denning MR put it in Prichard v Westminster Bank Limited [1967] 1 WLR 547 at 549, when there is no insolvency the general principle as regards competing judgment creditors “is that the person who gets in first gets the fruits of his diligence…”.  See likewise the more recent judgment of Keith Yeung J in Paloma Co Ltd v Capxon Electronic Industrial Co Ltd [2020] HKCFI 754 at §48 (“The general rule is that the person who gets in first gets the fruits”).

29.  For his part, Mr Toby Brown (appearing for the Intended Intervener) does not generally dispute the above principles, but submits that they “are not absolute rules and are subject to the applicable circumstances”.  He adds that the application of these principles “presumes that the applicable process had been properly followed when the Court granted Ps’ garnishee order absolute and further presumes that Ps’ judgment is valid”.  In short (Mr Brown says), the Plaintiffs’ reliance on the first-to-fruits principle is only “correct in respect of competing valid judgments” (his emphasis).

30.  As seen below, however, there is simply no basis in the circumstances of this case for the Intended Interveners, as third parties, to seek to challenge to validity of the Final Judgment following the grant of the Plaintiffs’ Absolute GO.

(2) No basis under Order 49, rule 6

31.  Apart from the Intervention Summons’s marginal note reference to “inherent jurisdiction”, which has not been developed in submissions, the present application has been brought and maintained under Order 49, rule 6 of the Rules of High Court.

32.  Order 49, rule 6 provides:

“(1) If in garnishee proceedings it is brought to the notice of the Court that some other person than the judgment debtor is or claims to be entitled to the debt sought to be attached or has or claims to have a charge or lien upon it, the Court may order that person to attend before the Court and state the nature of his claim with particulars thereof.

(2) After hearing any person who attends before the Court in compliance with an order under paragraph (1), the Court may summarily determine the questions at issue between the claimants or make such other order as it thinks just, including an order that any question or issue necessary for determining the validity of the claim of such other person as is mentioned in paragraph (1) be tried in such manner as is mentioned in rule 5”.

33.  These provisions clearly envisage the bringing of any rival claim before a garnishee order absolute is made, with the validity of any such claim to be determined in accordance with the general procedure set out in Order 49, rule 5 for resolving disputes over whether a garnishee order ought to be made absolute.  There is nothing under Order 49 that suggests any exception to the first-to-fruits principle noted above, or to the general position that where (as in this case) the Court has made an order absolute and moneys have been paid out pursuant to it, it becomes functus officio and has no further jurisdiction over the case: see for example Andayani v Chan Oi Ling [2000] 4 HKC 233 at 237C-E (Keith JA, citing Slesser LJ in Millensted v Grosvenor House (Park Lane) Ltd [1937] 1 KB 717 at 722).

34.  The Intended Intervener’s Reply Submissions cites Employers’ Liability Assurance Corporation, Limited v Sedgwick, Collins and Company [1927] AC 95 for the proposition that “a garnishee can be set aside if the underlying judgment is in question”, quoting the following words of Lord Blanesburgh (at p 121):

“My Lords, there is not now, I think, any doubt as to the real issue between the parties to this appeal. Garnishee proceedings are a form of execution, and an order absolute will not be made if the proceedings are based upon a judgment so open to question that any payment made by the garnishee to the judgment creditor would leave him exposed to a real and substantial risk of seeing, in this country, the judgment set aside, or in another country, of finding it not recognized, with the result in either eventuality that payment under the garnishee proceedings might be no discharge of his own debt.” (my emphasis)

35.  As the quoted words themselves reflect, the House of Lords in that case was addressing the situation where an order absolute has yet been made, the question there being whether or not to grant a garnishee order absolute in the first place.  So the case does not assist the Intended Intervener in the present situation, where the Plaintiff’s Absolute GO has already been granted.

36.  In short, the Intended Intervener has failed to establish any proper basis for challenging the Final Judgment or for any of the other orders sought under the Intervention Summons.

37.  In reaching this conclusion, I have taken into account the Intended Intervener’s contention that they should be permitted to challenge the Plaintiffs’ Absolute GO because (1) they were not notified by CITIC of the Plaintiffs’ GO nisi; and (2) they were therefore unable to make submissions to the court before the order absolute was granted.

38.  Even assuming that the Intended Intervener’s factual account in this regard is true – and leaving to one side CITIC’s submission that it had no duty as garnishee to notify others (including the Court) of a third party claim – the Intended Intervener has entirely failed to demonstrate how its failure (for whatever reason) to challenge the Plaintiffs’ GO nisi under Order 49, rule 6 before the order absolute was made, entitles it to do so afterwards.  The same fundamental problem remains: there is in my view no basis for invoking the Order 49, rule 6 mechanism once the order absolute is made.

39.  I would briefly add that, even if there was jurisdiction to allow the Intervention Summons, I would decline to exercise my discretion in favour of such a course having regard to all the circumstances of the case, including the fact that CITIC has already made payment to the Plaintiffs pursuant to the Plaintiffs’ Absolute GO.  I see no compelling reasons why the interests of finality and certainty should be overridden in this case.    

D. CONCLUSION AND COSTS

40.  The Intervention Summons is dismissed with costs payable to the Plaintiffs.

41.  Having regard to the Plaintiffs’ Statement of Costs, I summarily assess their costs in respect of the Intervention Summons at HK$120,000.

42.  As for CITIC (the 7^th Garnishee), bearing in mind its limited role in the present application, I summarily assess its costs at HK$45,000.   

43.  I am grateful to Mr Brown, Mr Hunsworth and Mr Wong for their capable assistance.