LIN MING v. SEQUEDGE INVESTMENT INC. (formerly known as SEQUEDGE INC.) AND OTHERS

HCMP 2596/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2596 OF 2011

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BETWEEN

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D E C I S I O N

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Introduction

1.  This originating summons seeks the relief that the defendants be enjoined from proceeding with an arbitration proceeding until the determination of HCA 1900/2011 (“A1900”) or until further order (presumably to be made in A1900).

2.  It is common ground that the relief sought is exactly the same as an application made by way of summons (dated 29 November 2011) in A1900 save that:-

(a) 26 other defendants are involved in A1900;

(b) the 1^st and 2^nd defendants herein are the 27^th and 28^th defendants in A1900;

(c) the 3^rd defendant (“Gingero”) is not a party to A1900.

The said application will be heard on 7 February 2011.

3.  The plaintiff’s affirmation in support of the present application states (among other things):-

“D27, D28 [that is, the 1^st and 2^nd defendants herein] and Gingero are affiliates and were controlled by the same group of individuals … ” (para. 21 thereof);

“… Gingero, D27 and D28 have common control. To the best of my knowledge and belief, Gingero was only a nominee of D28 … ” (para. 22 thereof).

4.  In view of the above matters, the defendants herein asked that the present application be dismissed.  Among the grounds put forth in support, they submitted that the present application is an abuse of the court’s process (para. 1 to 6, defendants’ written submissions).

5.  When queries were raised by the court as to why Gingero was not added as a defendant in A1900, plaintiff’s counsel fairly admitted in effect that:-

(1) Gingero should have been added as a defendant in A1900;

(2) the failure to do so was due to the mis-judgment of the plaintiff’s legal representative when insufficient consideration was given by them to the matter.

6.  Taking into account (i) para. 5 above, and (ii) para. 1 to 6, defendants’ written submissions, I conclude that the present application should be dismissed by reason of being an abuse of the court’s process.