BASAB INC. v. FOK HEI YU AND ANOTHER

HCA 2562/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2562 OF 2013

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AND

HCA 6/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 6 OF 2014

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(Heard together)

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DECISION

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Introduction

1.  The central complaint of these two actions is the sale of the 161,000,000 shares in Kith Holdings Limited (“KHL”) registered in the name of Accufit Investments Inc. (“Accufit”), a BVI company, by the receivers (“the Receivers”) appointed by Superb Glory Holdings Limited (“Superb Glory”) under a debenture securing a loan extended by Superb Glory to Accufit in the sum of HK$140 million on 18 December 2013 (“the Sale”) allegedly at a gross undervalue. The Sale yielded HK$49,780,000 whereas the fair market price is alleged to be in the region of HK$312 to 389 million.

2.  Accufit is not a plaintiff in either action. Basab Inc., another BVI company, is the sole shareholder of Accufit and is the only plaintiff in HCA 256 of 2013 (“the 1^st Action”) and the 1^st plaintiff in HCA 6 of 2014 (“the 2^nd Action”). In the 2^nd Action, the other plaintiff is Mr Hui King Chun who was the founder of KHL and is still the Chairman and Manager and Executor Director of KHL. KHL is a Bermuda company listed on the Main Board of the Hong Kong Stock Exchange.   

3.  The Receivers are Mr Fok Hei Yu and Mr John Howard Batchelor, respectively the 1^st and 2^nd defendants in the 1^st Action and the 3^rd and 4^th defendants in the 2^nd Action. In each of the 1^st Action and the 2^nd Action, the Receivers took out a summons (“the 1^st Action Summons” and “the 2^nd Action Summons”) for the purpose of striking out the claims against them mainly relying on the no reflective loss principle (“the Principle”). This court has heard the arguments of the parties on the two summonses.

4.  The Principle was too relied on by Superb Glory and its sole shareholder and director Chen LiHua (“Chen”), respectively the 1^st and 2^nd defendants in the 2^nd Action, in their striking out application (“the 2^nd Action Application”). DHCJ Wilson Chan (as he then was) acceded to their application and by the decision dated 4 December 2014 (“the CFI Decision”), the learned deputy judge made an order that the 2^nd Action as against Superb Glory and Chen be struck out.

5.  The Court of Appeal upheld the CFI Decision at the conclusion of the hearing of the appeal on 22 November 2016           and handed down the Reasons for Judgment and Decision on Costs dated 2 December 2016 (“the 1^st CA Judgment”). The Court of Appeal further refused the application of Basab Inc. and Mr Hui, the plaintiffs therein, for leave to appeal by its Judgment dated 10 February 2017 (“the 2^nd CA Judgment”).

6.  This court has kept track of the development of the 2^nd Action Application and indicated to the parties that the decision on the 1^st Action Summons and the 2^nd Action Summons would be withheld pending the availability of the 1^st CA Judgment, which in my view, is determinative of the major issue here.

7.  Shortly after the 1^st CA Judgment was handed down, this court invited the parties to make further written submissions in light of the same. Mr Wong SC, leading Mr Hui, for the Receivers, has helpfully provided supplemental written submissions. Instead of lodging with this court theirs, the plaintiffs in both actions, now represented by a new firm of solicitors[1], requested in person that this Decision should be deferred pending the resolution of their appeal to the Court of Final Appeal.  Given the effectively binding decision of the Court of Appeal directly on the central issue of the Receivers’ applications, this court opines that there should be a determination of their summonses in light of the 1^st CA Judgment without further delay and therefore I rejected the plaintiffs’ suggestion.

Background facts

8.  The background facts relevant to the Receivers’ applications are neatly summarized in the CFI Decision and the summary gives a clear introduction of both the parties involved and the facts, mostly undisputed, leading to the commencement of the 1^st and 2^nd Actions. The Court of Appeal adopted the summary in the 1^st CA Judgment with an addition of some new developments. This court, instead of making another summary of the same facts on its own, respectfully adopts the narrative set out in the 1^st CA Judgment and it is as follows:

4.  I adopt the relevant background matters set out in the judgment below at §§5 to 18:

“5.  The 1^st plaintiff owns 100% of Accufit. Accufit in turn held 161,000,000 shares in KHL [Kith Holdings Limited], a listed company. The 2^nd plaintiff was the founder and Chairman of KHL.

6.  The 2^nd defendant is the sole director and shareholder of the 1^st defendant.

7.  There is no dispute that:

(1)In September 2012, the 1^st defendant lent HK$140 million to Accufit and the 2^nd plaintiff provided a personal guarantee for the debt.

(2)In January 2013, the 2^nd defendant and Accufit entered into a supplemental loan agreement, varying some terms of the original HK$140 million loan and the 2^nd plaintiff signed a supplemental personal guarantee for the debt.

(3)In February 2013, the 1^st plaintiff executed a Debenture (including a floating charge) over all its assets (including its 100% shareholding in Accufit) to secure the loan.

(4)Despite repeated demands, Accufit failed to make repayment. Cheques were issued for partial repayment, but they were dishonoured. The last attempt was made on 28 March 2013.

8.  Given Accufit’s default, the 1^st defendant took the following steps to protect its interests:

(1)On 12 April 2013, the 1^st defendant’s solicitors wrote to crystallise the floating charge over the 1^st plaintiff’s assets under the Debenture.

(2)On 6 May 2013, the 2^nd defendant appointed professional receivers under the Debenture, namely, Mr Fok Hei Yu and Mr John Batchelor of FTI Consulting (the “Receivers”). Under the Debenture, the Receivers appointed themselves as directors of Accufit. The Receivers are respectively the 3^rd and 4^th defendants in this action.

9.  The 1^st plaintiff had full knowledge of these events but never voiced any objection thereto.

10.  In the meantime, not only was Accufit in financial trouble, KHL’s financial situation also deteriorated rapidly:

(1)On 31 March 2013, KHL issued its 2012 Annual Results Announcement.  Its independent auditors raised concern over bank borrowings and loans, which had become overdue and unpaid, leading to “material uncertainty which may cast significant doubt on the Group’s ability to continue as a going concern…”.

(2)On 16 April 2013, KHL disclosed the disposal of a subsidiary at a book loss of more than HK$55 million for the purpose of the repayment of liabilities.

(3)On 23 April 2013, members of the KHL Group had to provide a general fixed and floating debenture to its creditor banks.

(4)On 31 May 2013, KHL announced that its plan to issue HK$300 million of bonds could not proceed as the placing agent was unable to procure subscribers.

(5)On 1 August 2013, KHL issued a loss warning.

11.  On 18 December 2013, KHL published an announcement to:

(1)suspend trading of its shares; and

(2)put its most valuable business into voluntary liquidation.

12.  On the same day, the Receivers (as directors of Accufit), after consulting independent financial advisers, decided to sell Accufit’s stake in KHL to Double Key International Limited, the 5^th defendant in this action (“Double Key”), at HK$0.38 per share.

13.  As a result of the sale of the KHL shares to Double Key, Double Key was obliged to make a general offer to all shareholders of KHL at the same price of HK$0.38 per share.

14.  On 9 May 2014, KHL’s Board issued a Response Document relating to Double Key’s general offer, which included a letter from an Independent Financial Adviser to KHL’s Board.  The Independent Financial Adviser took the view that the price of HK$0.38 was “fair and reasonable”.

15.  In the meanwhile, the 1^st defendant tried to enforce the 2^nd plaintiff’s personal guarantee, and issued a statutory demand dated 18 November 2013 against the 2^nd plaintiff. However, attempted service was unsuccessful, with the 2^nd plaintiff repeatedly giving the excuse that he was out of the jurisdiction through different solicitors.

16.  On 2 January 2014, the 1^st and 2^nd plaintiffs commenced the present action against, inter alios, the 1^st and 2^nd defendants.

17.  The plaintiffs’ claims are all premised upon the alleged sale at undervalue by the Receivers (as directors of Accufit) of Accufit’s KHL shares.  As put in paragraph 6 of the 2^nd Affirmation of the 2^nd plaintiff:

(1)The 1^st plaintiff, as the chargor and guarantor under the Debenture, claims that the sale at undervalue by the Receivers (as directors of Accufit) means that the 1^st defendant has breached its duties owed to the 1^st plaintiff as the chargee.

(2)The 2^nd plaintiff, as the guarantor of the debt, claims that the sale at undervalue by the Receivers (as directors of Accufit) means that the 1^st defendant has breached its duties owed to the 2^nd plaintiff as the chargee.

(3)The plaintiffs claim that there is a conspiracy amongst (1) the 1^st defendant (as chargee) and the 2^nd defendant (as its director); (2) the Receivers; and (3) the purchasers (ie, Double Key and its directors) to injure the plaintiffs economically by unlawful means (ie, the sale at undervalue).

18.  As a result, the plaintiffs complain that they have suffered loss, such loss being framed as follows:

(1)But for the alleged wrongdoing, Accufit would have sold the KHL shares at a price sufficient to cover Accufit’s loan obligations owed to the 1^st defendant, and the plaintiffs’ liability under their Debenture/Guarantee would be discharged.

(2)Due to the alleged wrongdoing (ie, sale at undervalue), the plaintiffs’ liability is no longer fully discharged, but only partially discharged (by the undervalue consideration).

(3)The loss is therefore the difference between full discharge (the plaintiffs are not liable at all) and partial discharge (the plaintiffs liable for the loan amount minus the undervalue consideration).”

5.  The consideration for the sale of the KHL shares to Double Key was $49,780,000.  The plaintiffs alleged that the fair value of these shares should be in the region of $312 to $389 million.

6.  I should mention that the 1^st plaintiff, Basab Inc, had applied for leave to bring a statutory derivative action in the name of Accufit, which is a company incorporated under the laws of the British Virgin Islands, to the courts of that jurisdiction.  The defendants in the proposed derivative action are basically the same as the parties in the present action.  They are the 1^st defendant in this action, the receivers who appointed themselves as directors of Accufit, and Double Key.  The proposed action was to recover loss arising out of the sale of the KHL shares to Double Key at a gross undervalue.

7.  On 22 September 2014, Bannister J refused leave to bring a statutory derivative action, holding that the claim against the various defendants was speculative, unsupported by any material evidence and without substance.  On 9 November 2015, the BVI Court of Appeal dismissed an appeal from the decision of Bannister J, having evaluated afresh the evidence adduced before the court and concluded that the appellant had failed to show on the available evidence it was more probable than not that it would succeed in proving that the KHL shares were sold to Double Key at an undervalue.”

9.  The foregoing and the following references in this Decision to the plaintiffs and defendants are references to such parties in the 2^nd Action. This court shall also adopt the same abbreviations used in the 1^st CA Judgment save otherwise specified.

10.  I should also add that the parties subsequent to the 2-day hearing before me by way of written submissions informed me of and make submission on the failure of Basab Inc. in its appeal against the refusal of its application for leave to launch a statutory derivative action against basically the same defendants in the 2^nd Action by the BVI Court of Appeal.

11.  Furthermore, I should give more information of the 1^st Action here.  Basab Inc. relies on the same factual allegations and claims against the Receivers for their alleged breach of their duties as receivers to it as chargor and guarantor[2] in the Sale, which it claims to be at a gross undervalue and lack bona fide. This is the only cause of action in the 1^st Action.

12.  Basab Inc. hence claims first equitable compensation for the Receivers’ breach of their duties. It also prays for an injunction restraining them from dealing with the shareholding of Basab Inc. in Accufit for an amount less than the full value of the monetary claims of Accufit in its intended derivative action in the BVI and/or for the improper purpose of stifling the said intended BVI action. The pleaded case in respect of this claim is that Basab Inc. has made an application for leave to bring a statutory derivation action in the name of and on behalf of Accufit to recover its loss arising from the Sale in the BVI. At the hearing, this court was given a draft judgment of Bannister J sitting in the Commercial Court of the BVI which indicated his rejection of the said application of Basab Inc. by way of an exhibit to a late affirmation.

13.  As explained above, subsequent to the hearing of the two summonses of the Receivers, Basab Inc. obtained the official judgment against its application and so it took the matter to the BVI Court of Appeal. In November 2015, the appellate court in the BVI confirmed the refusal to grant such leave to Basab Inc.. The factual basis of the pleaded case should be examined in this light.

14.  On the other hand, in the 2^nd Action, the plaintiffs rely on the same tort of conspiracy to injure the economic interests of them by unlawful means against all the defendants including the Receivers. The pleaded unlawful means[3] include the Receivers’ breach of their fiduciary duties to Accufit as its directors and the duties in equity owed by them as the Receivers those duties owed to Basab Inc. as the chargor under the Debenture and the 2^nd plaintiff as the guarantor under the guarantee. The relief claimed against all the defendants under this head is damages for the said tort without any particulars given.

15.  By the 1^st Action Summons, the Receivers primarily seek to invoke the jurisdiction of this court to strike out the Statement of Claim on all the grounds under O.18 r.19 of the Rules of the High Court, Cap.4A (“the RHC”). Their alternative position is that the 1^st Action should be stayed pending the determination of certain relief in the Statement of Claim filed in the 2^nd Action or that the 1^st and 2^nd Actions should be consolidated/tried at the same time/ one immediately after another.

16.  By the 2^nd Action Summons, the Receivers ask for similar orders. In the premises, it appears to this court that the determination of the 2^nd Action Application by the Court of Appeal would have a bearing on my disposition of the Receivers’ applications should I need to consider their alternative positions in the two summonses.

Analysis

17.  I shall first deal with the 2^nd Action Summons. I can be brief in light of the 1^st and 2^nd CA Judgments. The Receivers’ core objection to the claim as against them in the 2^nd Action is that it offends the Principle. Mr Wong submits with force that the alleged loss suffered by the plaintiffs is merely reflective of the loss of Accufit allegedly caused by the Receivers. 

18.  Ms Eu SC, together with Mr Lam SC, for Basab Inc. and Mr Hui in both actions, submits that the Principle had no application to the 1^st and 2^nd Actions and the remedies therein sought do not include any damages for reflective loss. Ms Eu submits that the loss pleaded in the 2^nd Action is not based on the diminution in value of the Accufit shares as a result of the Sale nor with any benefits which would otherwise have been payable by Accufit. Rather, it arises from the tort of conspiracy by unlawful means on the part of the Receivers by virtue of their breach of their equitable duties as the receivers owed to Basab Inc. to ensure that its indebtedness to Superb Glory under the covenant is cleared off as much as possible.

19.  Her skillful submission however does not survive the analysis in the CFI Decision and the 1^st CA Judgment. In the 1^st CA Judgment[4], Kwan JA observed that the plaintiffs actually did not appeal against the learned deputy judge’s conclusion concerning the plaintiffs’ conspiracy claim against the 2^nd defendant. The learned deputy judge pointed out that the conspiracy claim and hence the same remedy must also be available to Accufit. Therefore, the plaintiffs’ claim clearly falls foul of the Principle. It being the only claim against the 2^nd defendant, the plaintiffs’ claim against the 2^nd defendant must be struck out entirely.

20.  I too agree with the reasoning of the learned deputy judge[5]. Likewise, the conspiracy claim as against the Receivers being the only claim against them in the 2^nd Action must be struck out by reason of the Principle. The claim is unsustainable in law.

21.  In particular, I should mention the conclusion of the Court of Appeal that the 2^nd Action is a classic situation in which loss was allegedly suffered by the claimants (the plaintiffs) as the shareholders of a company (Accufit). I am unable to deviate from this conclusion.

22.  I am not persuaded that the Principle ceases to be applicable merely because of the availability of other causes of action by the plaintiffs in other capacities against the Receivers. As explained by Kwan JA[6], as a matter of substance, the plaintiffs’ claim would be made good if Accufit should recover from the defendants including the Receivers all loss arising from the Sale. The Principle applies to prevent double recovery.  Kwan JA went on to say this[7],

“As stated in Gardner v Parker at §49 and quoted in Pico North Asia Holdings[8] at §35, “the rule against reflective loss is not concerned with barring causes of action as such, but with barring recovery of certain types of loss.” So the principle applies “where the loss claimed by the shareholder is merely reflective of the company’s loss, even though the defendant may owe wholly different duties to the company and to the shareholder” (Pico North Asia Holdings, §36).”

23.nbsp; Ms Eu refers this court to International Leisure Ltd v First National Trustee Co UK Ltd [2013] Ch 346 for the proposition that the Principle does not bar a secured creditor from claiming against an administrative receiver for such loss arising from the breach of his duty in his office. There, the secured creditor was held to be the one primarily entitled to obtain and retain all damages awarded for the alleged breaches and to whom the primary duties were owed. Thus, his claim against the administrative receiver did not offend the Principle.

24.  Similar arguments were advanced before the Court of Appeal in respect of the 2^nd Action Application. Kwan JA was not convinced and found the present case to be very different in that the plaintiffs are not secured creditors. I agree that International Leisure Ltd does not assist the plaintiffs here at all.

25.  I note that there are minor complaints raised by Ms Eu concerning procedural matters. I shall deal with them in the course of my analysis of the 1^st Action Summons. As far as the 2^nd Action is concerned, given the clear and definitive conclusion in the 1^st CA Judgment concerning the nature of the plaintiffs’ claim against the defendants including the Receivers in the 2^nd Action, I too conclude that it is plain and obvious that the claim in the 2^nd Action as against the Receiver should be struck out by reason of its contravention of the Principle.

26.  Now I turn to the 1^st Action Summons. Mr Wong submits that the claim of Basab Inc. for equitable compensation is for the same reason bad in law and its claim for the injunction is academic in any event. He submits that the commencement of the two actions against the Receivers based on the same factual allegations constitutes an abuse of process.

27.  I cannot accept the latter submission absent cogent evidence of bad faith. It appears to me to be more a question of costs than a valid ground of striking out.

28.  Mr Wong does not dispute with Ms Eu’s submission that a receiver can owe equitable duties to a chargor over whose assets he is appointed receiver and hence a chargor may maintain an action against his receiver in the event of any breach of such duties. Nor is there any dispute that a receiver owes similar equitable duties to a guarantor of the chargor’s secured debt. Authorities in support of the existence of such duties of a receiver abound: Picarda: The Law Relating to Receivers, Managers and Administrators (4^th Edn) at pp.155-156; Kerr & Hunter on Receivers and Administrators (19^th Edn) at §§19-15 to 19-18; Gomba Holdings Ltd v Homan [1986] 1 WLR 1301, Standard Chartered Bank Ltd v Walker [1982] 1 WLR 1410.

29.  However, Mr Wong highlights the true nature of the claim of Basab Inc. against the Receivers. In this connection, he draws to my attention to the nature of the intended BVI derivative action of Basab Inc. as revealed in the Statement of Claim filed in the 1^st Action. It is pleaded that the intended derivative action and any judgment arising thereform are valuable assets belonging to Accufit, the value of which should be reflected in the plaintiff’s shareholding in Accufit. This speaks volumes for the nature of its claim in the 1^st Action based on the alleged breaches of duties on the part of the Receivers.

30.  Mr Wong invites my attention to the ruling of the House of Lords in Johnson v Gore Wood and Co [2002] 2 AC 1 for the explanation of the Principle. He also refers me to the following passage in Sealy’s Cases and Materials in Company Law (9^th Edn, OUP) at p.638:

“The “no reflective loss” principle ensures that a defendant can be sued only once for the same loss, and , in doing that, prioritises the company’s claim as a matter of principle. Regardless of the type of claim (common law or equity), or the form of remedy (compensation or restitution), or the status of the member (majority or minority), the principle prevents a person other than the company suing for the loss even when the person has a cause of action against the defendant, and even if the cause of action is different from the company’s.

31.  For the loss allegedly suffered by Basab Inc., despite the able submissions of Ms Eu, it, if any, very much remains to have purportedly arisen from the alleged shortfall in the sale proceeds of the KHL shares and it is merely reflective of such loss suffered by Accufit. Even Basab Inc. comes up with the allegations of breach of equitable duties owed by the Receivers personally to it in some other capacities, this does not alter the reflective nature of its claim. In light of the established authorities including Pico North Asia Holding Ltd and the 1^st CA Judgment, the Principle is engaged in my judgment and should stop the claim of Basab Inc. in the 1^st Action.

32.  Given my conclusion that the claim of Basab Inc. for equitable compensation violates the Principle and hence should not be allowed to proceed, there is no need to deal with the alternative submission of Mr Wong to the effect that the claim of Basab Inc. for equitable compensation is premature and that declaratory relief would be more appropriate. Suffice it for me to say that I also agree with Ms Eu that Basab Inc., on the face of it, under the covenant, is obliged to repay as a principal debtor of the loan but the pleaded case of Basab Inc. remains to be based on its dual capacity of chargor and guarantor only. I would not exercise my discretion to strike out the claim on the basis of this alternative submission nonetheless.

33.  In regard to the injunction sought, Basab Inc. explains in its pleading why there is a concern about the Receivers’ likely disposition of the shareholding of Basab Inc. in Accufit. It is alleged that such dispositions may frustrate or stifle its intended BVI derivation action.

34.  It is also pleaded that whilst the Receivers refused to give an undertaking not to deal with such shareholding until trial, they indicated that they had no intention to sell, encumber or otherwise dispose of its shareholding in Accufit in the meantime.

35.  On such factual basis, coupled with the fact that the BVI Court of Appeal has affirmed the refusal to grant Basab Inc. leave to commence a statutory derivative action, I agree that the injunction sought serves no meaningful purposes and should never be granted. Given my foregoing conclusion about the main claim, I should not allow the 1^st Action to continue for the sake of this injunction. I should also strike out this claim.

36.  Should there be any change of circumstances, I am sure that there are legal steps that Basab Inc. can take to forestall any disposition of its shareholding with a view to stifling its intended derivative action.

37.  Lastly I shall briefly deal with the procedural complaints. Ms Eu drew to my attention that the Receivers failed to comply with Practice Directions 19.1 to serve notice on the plaintiffs to inform them of the ground(s) on which they would rely in their application to strike out the pleadings as disclosing no reasonable cause of action. Furthermore, she complains that the objection based on the Principle was only raised in the reply affirmation of Mr Fok without leave.

38.  This court of course expects strict compliance with the Practice Directions or any provisions in the RHC. It is of critical importance that legal practitioners should follow such provisions so as to ensure fairness of legal proceedings.

39.  In the present case, I accept the validity of such complaints raised by Ms Eu. There is no explanation given for the non-compliance. However, the objections of the Receivers here are so fundamental that no amendments to the pleadings in both actions in the wake of a sufficient notice could in my view salvage the claims. The plaintiffs have never asked for leave to amend the pleadings to prevent them from being struck out anyway. Further, such objections involve legal arguments with reference to the pleadings only. Ms Eu confirms that the plaintiffs need no adjournment to deal with the objections by way of further evidence or otherwise.

40.  In the circumstances, absent any discernible prejudice caused to the plaintiffs, I cannot take these complaints any further and they do not in any way affect the way that my discretion should be exercised to strike out the 1^st and 2^nd Actions as against the Receivers for the reasons given above.     

Conclusion and order

41.  In conclusion, I am convinced that the Statement of Claim of Basab Inc. in the 1^st Action should be struck out and the 1^st Action should be dismissed. Likewise, in the 2^nd Action, the plaintiffs’ Statement of Claim as against the Receivers should be struck out and the 2^nd Action as against the Receivers should be dismissed.

42.  There is no reason why costs should not follow the event. For the 1^st Action, I make an order nisi that Basab Inc. do pay the Receivers their costs of the 1^st Action including such costs of and occasioned by the 1^st Action Summons, to be taxed if not agreed.

43.  A similar costs order nisi is made against the plaintiffs in favour of the Receivers in the 2^nd Action.

44.  Lastly, I thank all counsel involved for their helpful submissions.

HCA2562/2013

HCA6/2014

[1] Ha & Ho

[2] §§21-22 of the Statement of Claim filed in the 1^st Action.

[3] §§38-43 of the Statement of Claim in the 2^nd Action.

[4] §10 of the 1^st CA Judgment.

[5] §§32-33, 36-38 of the CFI Decision.

[6] §35 of the 1^st CA Judgment.

[7] §36 of the 1^st CA Judgment.

[8] [2011] HKCU 256.