XCHRX CCA MANAGEMENT CO. LTD. v. SHENZHEN SAND RIVER GOLF CLUB LTD.

HCA 14679/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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J U D G M E N T

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1. I say at once that I am most indebted to both counsel for their very able and helpful submissions. By its summons dated 12th January 1999, the Intervenor asks that certain parts of a Mareva order made by Sears J. on 22nd December 1998 and varied by Sakhrani J. on 31st December 1998 be expunged.

2. The parts which I am asked to expunge are those found in paragraph 1(ii)(b)(i), (ii) and (iii) of the Mareva order. Those parts refer to funds held on the Judgment Debtor's behalf in a number of bank accounts with three different banks. Those accounts are in the Intervenor's name; and the Intervenor says that none of the funds in those accounts are held on the Judgment Debtor's behalf. The Intervenor says that all those funds are its own; but that the service of the Mareva order on the banks in question have in effect frozen those accounts save to the extent brought about by Sakhrani J.'s variations; and that while those variations enable it to use those funds in the ordinary and proper course of its business and operations, that is still less convenient than complete freedom. The Intervenor also says, as I understand its position, that inconvenience apart, there is simply no basis why its bank accounts should be subject to a Mareva order made on the footing that there are funds held therein on the Judgment Debtor's behalf when none of the funds in the accounts are so held.

3. I will not recite the evidence and arguments bearing on the question of whether the funds in the accounts are held on the Judgment Debtor's behalf. I will simply say this: that upon a careful consideration of such evidence and arguments, I am of the view that there is a good arguable case that the funds in the accounts are held on the Judgment Debtor's behalf. I do not consider it right for me to alter the Mareva order at this stage unless the balance of convenience favours such alteration. In all the circumstances, I am of the view that the balance of convenience does not favour that.

4. Accordingly, I dismiss the summons. What remains is the question of the costs of the summons; and I will hear both parties on those costs.

[Submissions on costs]

5. I make an order that the costs of this summons be to the Judgment Creditor against the Intervenor, to be taxed if not agreed. There will be no order as to the Judgment Debtor's costs.