KCK ENERGY CONSERVATION SYSTEM LTD v. CHAU KEE HOLDINGS CO LTD AND OTHERS

DCCJ 97/2020

[2021] HKDC 740

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 97 OF 2020

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BETWEEN

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DECISION

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A. Introduction

1.  This is the application of the defendants (called “CKH”, “D2” and “D3” respectively) to discharge the Mareva injunction granted on 7 April 2020 on an ex parte basis and continued on 17 April 2020 after an inter-partes hearing (“the Order”).

2.  Alternatively, D2 seeks to vary the Order to the extent that he be allowed to spend $64,560 per month towards his ordinary living expenses and $80,000 per month on legal advice and representation until trial.

3.  The application, in both respects, is opposed by the plaintiff (“KCK”).

B. The parties’ respective case

4.  At the heart of KCK’s case is the oral agreement made between Mr KC Lai (“Mr Lai”) for KCK and Mr Kiwi Li (“Mr Li”) for CKH in about 2013 as pleaded in paras 5-7 of the Re-Amended Statement of Claim (“RASOC”). 

5.  According to its counsel (Mr Billy Ma), KCK is claiming against the defendants:- ^[1]

(a) Primarily for the sum of $2,942,313.66, being the outstanding balance of price of LED lights sold and delivered by KCK to CKH between 2014 and 2019 in pursuance of the oral agreement.

(b) When CKH had fallen behind payment, D2 and D3 (as its shareholders/directors and alter egos) guaranteed in 2015 and warranted in 2019 that they would personally settle the outstanding amounts in consideration of KCK’s agreement to continue to supply LED lights and forbearance to sue.

(c) There is a secondary claim based on three dishonoured cheques drawn on CKH’s account in the total sum of $929,928.43.

(d) KCK says D2 and D3 are also liable on those dishonoured cheques based on misrepresentation and/or procuring breach of contract.

6.  On the part of the defendants, their counsel (Mr Tim Yu) outlined the following defences in his submissions:- ^[2]

(a) KCK’s calculation of the claimed sum is disputed.

(b) D2 and D3 deny the existence of the oral agreement, the guarantee and the collateral warranty alleged by KCK, and deny any misrepresentation or procurement of breach of contract.

(c) The three dishonoured cheques were delivered as “conditional” cheques at the material time.

7.  It is the defendants’ case that there was an oral joint venture agreement between KCK and CKH as pleaded in paras 30-33 of the Defence and Counterclaim (“D&CC”), and CKH is:-

(a) entitled to set off the sum of $1,949,850.21 against KCK’s claimed sum (if any), being reimbursement from KCK for travel, accommodation and entertainment expenses incurred by CKH since 2014; and

(b) counterclaiming against KCK and Mr Lai (its de facto director) for damages for misrepresentation and breach of the joint venture agreement.

C. The relevant procedural history

8.  Letters before action (dated 26 November 2019) were sent to CKH to the attention of its directors. When there was no response, KCK issued the Writ herein on 7 January 2020 to commence these proceedings.

9.  On 19 March 2020, D2 and D3 took out a summons to strike out the claim against them.  The application was supported by the affirmation of D3 (“D3 I”).  By an order dated 23 June 2020, leave was granted to withdraw the application.

10.  On 6 April 2020, KCK made an ex parte application for Mareva injunction, which was granted by HH Judge KC Chan (“the ex parte Judge”) on 7 April 2020.

11.  On 9 April 2020, KCK took out an inter partes summons for continuation of the ex parte Mareva injunction and amended its Statement of Claim. 

12.  At the hearing on 17 April 2020, HH Judge Harold Leong (“the inter partes Judge”) made the Order after hearing Mr Ma and Mr Yu (then representing D2 and D3 only). 

13.  On 15 January 2021, the defendants issued the summons for their present application.

D. The discharge application

14.  Mr Yu has helpfully summarised the grounds for discharging the Mareva injunction, both procedural and substantive, under the following headings:-

(1) No reason for applying on an ex parte without notice basis.

(2) Delay in applying for the ex parte Mareva injunction.

(3) No good arguable case against D2 and D3.

(4) There was material non-disclosure.

(5) There was no real risk of dissipation of assets.

15.  Before I turn to these grounds, I need to deal with a preliminary objection raised by Mr Ma.

E. Preliminary objection

16.  Mr Ma observes that the defendants had ample time and opportunity prior to the inter partes hearing to file evidence to oppose the Mareva injunction but chose not to do so.  Relying on para 29/1/34 of the Hong Kong Civil Procedure 2021 and para 24-016 of Gee on Commercial Injunctions, 7^th edition (2020), he argues that given (i) the hearing on 17 April 2020 was inter partes in nature and (ii) the 9-month delay[3] on the part of the defendants in making the application, the defendants are not entitled to apply to discharge or vary the Order without good grounds or change of circumstances.

17.  Mr Yu explains that the defendants have taken more time than they initially expected to launch the application given the voluminous documentation (running into 24 bundles and almost 5,500 pages) and D3’s (unsuccessful) legal aid application. 

18.  In my view, the objection is misconceived.  The material part in Hong Kong Civil Procedure 2021 is in these terms:-

“Where an interim order has been made by consent, or following a full inter partes hearing, the person seeking to discharge or vary the order is not entitled to do so as of right or to re-argue it as if it were a re-hearing (Keep Bright Ltd v. Super Auto Investments Ltd (unrep., HCCT 16/2010, [2012] HKEC 67). The court would generally only consider varying or discharging an interim injunction on good grounds or due to a change in circumstances or facts coming to light that could not reasonably have been found out beforehand (Chanel v. FW Woolwich & Co. Ltd [1981] 1 W.L.R. 485; Dynamic Creations Ltd v. Mint Gem & Jewellery Manufacturing Co. Ltd (unrep., HCA 378/2006, 12 April 2006)).”

19.  The quotation from Gee, relating to the principle that there should be finality and points should be taken promptly, is to the same effect and applies “when there had been a consent order for continuance of an injunction … or a contested inter partes application for an injunction…”.

20.  Mr Ma confirms that Mr Yu did inform the inter partes Judge that D2 and D3 would apply to discharge/vary the injunction in due course and the Judge did not hear argument on the intended application.  CKH was then absent and unrepresented.  It was in that context that the Judge made the Order to continue the ex parte Mareva injunction “until the determination of the proceedings, or unless before then it is varied or discharged by a further Order of the Court.”  Therefore, the Order was not made by consent and not made following a full or contested inter partes hearing.

21.  Given the usual term (on page 6 of the Order) that the defendants may apply to vary or discharge the Order upon giving advance notice to KCK’s solicitors, I do not think Mr Ma’s objection based on delay carries any weight.

22.  I rule against KCK on its preliminary objection.

F. No reason for applying on an ex parte without notice basis?
    Delay in applying for the ex parte Mareva injunction?

23.  I shall take these two grounds together.

24.  First, Mr Yu argues that in breach of para 32(3) of Practice Direction 11.1, KCK has failed to set out the facts relied upon in justifying its ex parte application, such as the reasons for not giving notice to the defendants.  Following Yifung Developments Ltd v Liu Chi Keung Ricky [2014] 4 HKLRD 483 at paras 15-16, he urges me to set aside the Order on this ground alone.

25.  Secondly, he complains that the ex parte application was made late – over 6 months after the dishonoured cheques.  He observes that the key basis for KCK’s application was that the defendants had demonstrated conduct of low commercial morality by reason of the dishonoured cheques.  If KCK could perceive real risk of dissipation of assets from the dishonoured cheques, it has failed to explain why it did not apply for Mareva relief earlier.

26.  It is trite that an ex parte application is justified where the purpose of the injunction may be frustrated by the defendant being given notice of the hearing: para 29/1/34 of Hong Kong Civil Procedure 2021.  The ex parte application in this case should be viewed against the following background:- ^[4]

(a) Shortly before the issuance of the Writ in January 2020, KCK’s solicitors caused a search to be made at the Companies Registry against CKH.  The last document then filed at the registry was a Form ND2A – Notice of Change of Company Secretary and Director (Appointment/Cessation) submitted on 20 December 2019, but the document was withheld from download or search.  The document preceding it in the index was the Annual Return 2019, which confirmed that D2 was still a director and shareholder of the company.

(b) Whilst D2 and D3 acknowledged service of the Writ in their personal capacity in January/February 2020, they did not cause an acknowledgement of service to be returned for CKH at the same time.^[5]

(c) In March 2020, D2 and D3 applied to strike out KCK’s claim against them.  It was stated in the supporting affirmation that: “Whilst [D3 is] now the sole director of [CKH], [D2] ceased to be a director of [CKH] on 27 November 2019 and [D2] transferred all his shareholdings of the company to [D3] on 20^th December 2019.”[6] That prompted KCK to seek legal advice from a more experienced counsel and carry out more investigation on CKH.

(d) An updated company search on CKH in March 2020 revealed that:

(i) It was stated in the Form ND2A filed on 20 December 2019 that D2 had ceased to be a director and a shareholder of CKH on 27 November 2019 and 20 December 2019 respectively. 

(ii) The Annual Return 2020, filed on 10 February 2020, was to the same effect. 

(iii) However, the abovementioned Form ND2A had been withdrawn and was replaced by a new Form ND2A.  KCK was then unable to learn of its content as the document was pending filing.

(e) On 3 April 2020 (which is a Friday), a clerk of KCK’s solicitors attended the registered office address of CKH at Unit D, 2/F, Block 2, Wah Fung Industrial Centre, 33-39 Kwai Fung Crescent, Kwai Fong, NT, HK between 11 am and noon and discovered that the office was not open or in operation.  There was also no listing of CKH in the directory of the building.

(f) Pursuant to counsel’s advice, P took out the ex parte application on the following Monday (ie 6 April 2020) and amended its Statement of Claim to articulate its claim fully against D2 and D3.

27.  In paras 54-62 of his third affirmation (“D2 III”), D2 refuted KCK’s accusation that there had been back-dating or cover up and attributed the change of shareholdings and directorship to a fundamental disagreement between him and D3 over the company’s business direction.  He sought to explain away the replacement of the Form ND2A by saying that that was due to the mistake of CKH’s company secretary.

28.  He claimed (in para 63 of D2 III) that he had been present at CKH’s registered office on 3 April 2020 for the whole day and that there had not been any visitor.  He challenged KCK to identify the clerk who had attended the premises.  He suggested that in any event CKH’s operation had mostly gone online and given the pandemic, it was “entirely reasonable for [CKH] to be closed and business to be carried out elsewhere.”

29.  Mr Yu also submits that the change of shareholdings and directorship in 2019 did not prevent D2 from being sued personally and should not be viewed as evidence of dissipation of assets.

30.  In my view, the circumstances highlighted above justified KCK into thinking that subsequent to its letters before action (i) CKH had ceased its operation; and (ii) D2 had tried to distance himself from CKH and D3 in order to evade potential liability:-

(a) According to Mr Li, CKH was specifically formed for the purpose of the joint venture agreement.[7]  It does not appear from the material disclosed by the defendants that CKH had other business. 

(b) There was no apparent reason for D2 and D3 to acknowledge service of the Writ for themselves but not for CKH in January/February 2020.

(c) The letters before action (which were sent to the attention of CKH’s directors) did not attribute any personal liability to the directors.  Whilst D2 and D3 were named as defendants on the Writ, KCK only articulated its claim against D2 and D3 in their personal capacity later in the Amended Statement of Claim filed in April 2020. This, in my view, explains D2’s action in trying to distance himself from CKH.

31.  It is D2’s evidence that he sometimes covered for CKH when the latter experienced “short-term liquidity issues”.[8] There were occasions in 2018 when D2 had used his personal cheques to pay for KCK’s invoices after the dishonouring of CKH’s cheques.^[9]  In those circumstances, KCK cannot be criticized for not applying for Mareva relief immediately after the dishonour of the three cheques in question.  Anyway, mere delay, without more, is not fatal and the defendants are far from demonstrating that it would be unreasonable or practically unjust to grant the Order: see Abbott GmbH & Co KG v Pharmareg Consulting Co Ltd [2009] 3 HKLRD 524 at paras 80-95.

32.  As observed by Mr Lai,[10] it was surprising (to say the least) for D2 to be present at CKH’s registered office for the whole day on 3 April 2020 given that D2 had already resigned his directorship and transferred away his shareholdings due to “fundamental disagreement” with D3 several months ago.

33.  I rule against the defendants on both procedural grounds.

G. No good arguable case against D2 and D3?

34.  Mr Yu concedes that KCK has a good arguable case against CKH.  The concession is in order.  Even on the basis of the defendants’ case (that there was the alleged joint venture agreement with a profit sharing ratio of 8:2 between KCK and CKH), it behooved CKH to pay KCK’s invoices representing KCK’s 80% share of the profit.

35.  As regards D2 and D3, Mr Yu’s complaints that (i) the alleged guarantee and warranty are lacking in particulars; (ii) there was no mentioning of the allegations prior to April 2020; and (iii) there was no documentary evidence in support of the allegations. 

36.  Upon the direction of the ex parte Judge, Mr Ma prepared a schedule enumerating the occasions when D2 had used his personal cheques to settle KCK’s invoices for CKH.^[11] The practice began in August 2016 and continued until October 2019, which roughly coincided with the timing of the guarantee and warranty alleged by KCK.^[12] 

37.  Whilst a court may be hesitant in finding that a director has assumed personal responsibility for an act attributed by law to his company especially in circumstances when an intervening company structure is used as in this case, express assumption of personal legal responsibility may be evidence that he is “taking off his corporate hat so that … it is reasonable for [a third party] to look to the proprietor’s personal pocket book as opposed to the company’s…”: per Buckley J in the English case of Ojjeh v Waller (unrep, Queen’s Bench Division, 14 December 1998) quoted in Threshold Consultants Limited v Boost Investments Limited [2020] HKCFI 415 at para 152.  In my view, the points raised by Mr Yu are matters for trial as in the Threshold Consultants case (see the discussion in paras 141-154).

38.  Mr Yu and Mr Ma only addressed me briefly on KCK’s alternative claim based on the dishonoured cheques.  This is understandable as the alternative claim is subsumed in the (larger) primary claim.  Anyway, the defence that the cheques in question were “conditional” does not sit comfortably with defendants’ own case on change of payment practice in 2018 requiring CKH to, inter alia, provide post-dated cheques as security of payment for its purchase orders to KCK.  The post-dated cheques would not amount to security given the agreement that they “would not be presented for payment until KCK had obtained consent from CKH”[13] alleged by the defence.

39.  It bears repeating what was said in Natural Dairy (NZ) Holdings Ltd (in provisional liquidation) v Chen Keen [2020] HKCFI 2491 at para 80: “The threshold of ‘a good arguable case’ is much higher than ‘a serious issue to be tried’ under the American Cyanamid principles. While the plaintiff need not go so far as to persuade the court that it is likely to win, it needs to show a case which is more than barely capable of serious argument, albeit not necessarily one that the judge believes to have a better than 50% chance of success. The existence of a good arguable defence does not necessarily negate a good arguable case …”.  I am quite satisfied that KCK has a good arguable claim against D2 and D3.

H. There was material non-disclosure?

40.  Here, Mr Yu complains that KCK had failed to disclose the following information to the ex parte Judge in breach of paras 32(4) and (5) of Practice Direction 11.1:-

(a) CKH was only incorporated after the oral agreement alleged by KCK.  In other words, CKH did not have legal capacity to enter into the alleged agreement.[14]

(b) Material documents such as promotional leaflets and prospectus, PowerPoint presentations, business proposals and reports, email correspondences between KCK/CKH and end customers that fairly present the close business relationship between KCK and CKH.  Instead, the ex parte Judge was led to believe that this was a simple case of goods sold and delivered at arm’s length.[15]

(c) Material documents pertaining to the new payment practice since 2018, whereby CKH was required to either provide post-dated cheques as security for payment or pre-pay a deposit or even the whole amount for its orders with KCK.[16]

41.  I reject these submissions.  The fact that CKH was incorporated after the oral agreement alleged by KCK was expressly mentioned in the supporting affirmation (see Lai I, paras 7 & 9) and highlighted by Mr Ma (see paras 11 & 13(1) of his skeleton argument) before the ex parte Judge.  Such information was not withheld from the ex parte Judge.  It is KCK’s case that the oral agreement was subsequently confirmed by CKH’s purchase orders (see Lai I, paras 11-13 and Mr Ma’s skeleton argument, paras 13(2)-(3) & 14).  Whether this would be accepted by the court is a matter for trial.

42.  I was taken by both counsel to the voluminous documentation filed by the parties.  In my view, that was quite unnecessary.  As I said at the hearing, these documents on the precise dealings between the parties may be relevant in the eventual trial but not material or necessary to enable the ex parte Judge to exercise his discretion properly: see para 29/1/51 of Hong Kong Civil Procedure 2021.

43.  There was in my view no material non-disclosure.

I. There was no real risk of dissipation of assets?

44.  Before the ex parte Judge, Mr Ma justified the application by submitting that the defendants had the track record of using dishonoured cheques and such conduct left much to be desired from a commercial morality point of view.[17]

45.  Pursuant to the ancillary disclosure order (para 2 of the Order), CKH and D3 (its remaining director/shareholder) have confirmed that they both have no assets of an individual value of $100,000 or more.^[18] This is surprising given the volume of transactions between the parties over the years reaching almost $10 million.^[19]

46.  Mr Ma has uncovered further evidence of dissipation from the voluminous material filed by the defendants:-

(a) CKH has apparently diverted substantial funds (at least $910,000) out of the jurisdiction to Vietnam.^[20]  The explanation of D2 remains to be tested.[21]

(b) D2 has caused funds to be transferred from CKH’s account to his personal account and the joint account he maintained with his wife.^[22] That was met by an outright denial of relevancy from D2 without much elaboration.^[23]

47.  Furthermore, D2 failed to volunteer his beneficial ownership in JW West (Hong Kong) Limited and Carry Hong (Group) Limited in pursuance of the ancillary disclosure order.  His explanation (that these companies do not hold assets over $100,000 for his benefit)^[24] remains to be tested. 

48.  Whilst D2 has owned up to his 95% beneficial ownership in Algonquin (HK) Limited, Mr Ma is concerned that D2 has failed to disclose all the documents relating to the company’s finance.[25] The fact that D2’s wife is the other director/shareholder of the company^[26] means that it would be easy for the company to dispose of its industrial unit and car parking space in Wah Fung Industrial Centre valued at about $5.5 million.^[27]

49.  There is also evidence that Mr Li had taken part or concerned in the management of CKH whilst he was still an undischarged bankrupt without leave of the court in contravention of section 480(1) of the Companies Ordinance, Cap 622.[28]  In my view, this casts a dim light on the commercial morality of the management of CKH.

50.  In my view, there is real risk of dissipation of assets by the defendants in this case.

J. The variation application

51.  To recap, D2 asks for $64,560 per month for his ordinary living expenses and $80,000 per month to continue to defend this action.

52.  D2 has disclosed that there are $113,949.69 in his personal account and $549,429.36 in his joint account with his wife.  If his application is allowed, these moneys can be cleared out within 6 months.

53.  Mr Ma certainly has cause to doubt D2’s sincerity in disclosing his assets:-

(a) D2 only disclosed his ownership of JR West (Hong Kong) Limited and Carry Home (Group) Limited after prompting from Mr Lai.

(b) It is difficult to understand how D2 can maintain a living standard for his family with monthly expenditure of almost $70,000 a month when he is the “main income source” of his family (with his wife being a full-time housewife) and only receives “irregular income from [his] part time valuation work”.^[29] Mr Ma was at pains at the hearing in taking me through Exhibit “HLS-10” in D2 III to demonstrate that D2 has apparently mixed up his company expenses with his personal/family expenses.

(c) Whilst D2 claims in para 86 of D2 III that he is paying $3,100 per month car parking fee “at the residential property I lived with my family in Chai Wan, Hong Kong”, the latest company search shows that he is residing at an address in Mei Foo Sun Chuen, Kowloon.

(d) D2 has only disclosed Algonquin’s bank statements from June 2020 in Exhibit “HLS-13” of D2 IV whilst the ancillary disclosure order takes effect on 7 April 2020.

54.  The Order presently provides (on page 5) that D2 may spend $30,000 per month towards his ordinary living expenses.  This is already more than the $25,000 he received each month from CKH in 2018/2019.^[30] Mr Ma suspects that D2 has other sources of income or resources to maintain his high standard of living.^[31]  I tend to agree given the above circumstances.  Consequently, I have decided not to vary the current level of living expenses D2 is entitled to under the Order.

55.  Turning to his legal expenses, D2 claims to have spent almost $1 million on this action (including almost $600,000 on this application).^[32] This is rather exorbitant bearing in mind the early stage of this litigation.

56.  As I pointed out to the parties, the Order only provides for legal expenditure “until the final adjudication of the Plaintiff’s summons to be taken out seeking continuation of the present injunction Order”.  To enable the defendants to further defend this action, I agree with Mr Ma’s suggestion to allow the defendants to expend up to $100,000 on legal advice and representation up to and inclusive of exchange of witness statements.

K.      Disposition

57.  For the above reasons, I dismiss the defendants’ application to discharge the Order and D2’s application to vary the Order.

58.  On my own volition, I amend the “EXCEPTION TO THIS ORDER” section of the Order by adding a new para 1A that: “This Order does not prohibit the defendants from spending $100,000 on legal advice and representation in this action up to and inclusive of exchange of witness statements.”

59.  On costs, I make an order nisi that the defendants do pay KCK’s costs in opposing this application forthwith with certificate for counsel save that the costs of the affirmations filed by both parties should be in the cause as those affirmations can stand as witness statement of the respective witness.