TIGER RESORT ASIA LTD v. KAZUO OKADA AND OTHERS

HCA 3017/2017

[2018] HKCFI 394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3017 OF 2017

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REASONS FOR DECISION

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1.  This is the 2^nd defendant’s (“D2’s”) application for time to file its affirmation pursuant to paragraph 4 of the Order made by L Chan J on 26 January 2018.

2.  On 27 December 2017, the plaintiff caused a Writ to be issued against inter alia the 1^st defendant (“D1”).  The causes of action include breach of fiduciary duties which D1 allegedly owed as the sole director to the plaintiff.  The primary cause of action against D2 is knowing assistance.  The forms of relief sought include a declaration that D1 is liable to account to the plaintiff the sum of about HK$120.05 million, payment of that sum, and tracing.

3.  On 23 January 2018, the plaintiff made an application for an interlocutory proprietary injunction against inter alia D1 and D2.  That injunction sought was in effect a Mareva injunction / preservation order with disclosure in aid.  That application came before L Chan J on 26 January 2018.  At the conclusion of the hearing, D1 gave an undertaking in terms of the injunction sought against him and consented to the making of certain disclosure by affirmation within 28 days.  Leave was given to D2 to file its affirmation of opposition within 14 days from the date thereof.

4.  In the meantime, on 19 January 2018, the plaintiff took out an application pursuant to section 21 of the Evidence Ordinance and the inherent jurisdiction of the court for inspection of banker’s records in relation to certain account.  One of the accounts the records of which the plaintiff seeks to inspect is held in the name of D2 with the Bank of Communication Co Ltd.  D1 is the sole signatory of that account.  That summons had not however been served upon D1.  D2 consented to that order upon the condition that it be shown any banker’s records in relation to that account which the plaintiff might be permitted to inspect.  The summons came before me on 6 February 2018.  During that hearing, I raised the issue as to whether the summons for inspection ought to have been served upon D1.  The matter was ultimately adjourned for substantive argument on 20 February 2018.  D2 now comes before me for time to file the affirmation pursuant to paragraph 4 of the Order made by L Chan J on 26 January 2018.

5.  I have considered the submissions made on behalf of the parties.  I regard it as fair that before D2 files its affirmation pursuant to the direction made by L Chan J, it should have the result of the application for inspection.  In particular, should the application for inspection be successful, it should have the benefit of the relevant banker’s records for the purpose of preparingits affirmation.  The plaintiff has agreed to show D2 those records if the order for inspection is granted.  After all, those records, if and when available, will be discoverable to D2 in the normal course of event. 

6.  In the circumstances, as a matter of fairness and having looked at the full picture, I grant D2 an extension of 28 days from the date hereof for D2 to file its affirmation.  Costs in the sum of HK$1,040 be paid to the plaintiff.