ANTHONY MICHAEL SMITH v. THOMPSON BRIGHT LTD

DCCJ 4673/2021

[2024] HKDC 2047

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4673 OF 2021

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DECISION

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Introduction and background

1.  I have before me an application by the Plaintiff (“P”) by Summons dated 11 November 2024 (“the Summons”) for an order to discharge the Mareva injunction order granted by HH Judge E Lin dated 7 August 2023 (“the Injunction Order”). The Injunction Order prohibited the Defendant (“D”) from disposing of, dealing with, or diminishing its assets up to the value of HK$850,635.02 including funds maintained in D’s bank account with Bank of China (Hong Kong) Limited (“BOC”).

2.  The 8^th Affidavit of Nicholas Christian Lin (“Supporting Affidavit”) has been filed in support of the Summons by P. The salient background as set out in the Supporting Affidavit are as follows:

(1)  On 5 October 2021, P issued a Writ of Summons against D to recover funds totalling US$82,430.46 which he claims he was falsely induced to transfer into the bank accounts of D and AWDH Trading Ltd;

(2)  D has never filed any acknowledgment of service;

(3)  On 28 February 2022, P was granted interlocutory judgment in default of acknowledgment of service with damages to be assessed;

(4)  On 7 August 2023, P obtained the Injunction Order;

(5)  The Injunction Order was continued by the order of Deputy District Judge S. P. Yip dated 11 August 2023 until the determination of the assessment of damages set down for 6 September 2023 at 9:30 am or further order;

(6)  On 12 September 2023, Master Isaac Yung handed down his judgment whereby final judgment was entered against D and D was ordered to pay P damages in the total sum of US$70,706.87 together with interests and costs;

(7)  On 15 September 2023, P applied for a garnishee order to show cause against BOC which was granted by an order of Master Vienne Luk dated 11 June 2024 (“Garnishee Order Nisi”);

(8)  On 9 September 2024, by order of Master Ross Li, the Garnishee Order Nisi was made absolute (“Garnishee Order Absolute”);

(9)  Upon obtaining the sealed copy of the Garnishee Order Absolute, on 4 October 2024, P’s solicitors wrote to BOC to request payment of the sums of US$70,706.87, US34,201.20 and HK$1,260.00 to their account;

(10)  On 8 October 2024, Mr Chan of BOC informed that BOC is unable to release any funds from D’s account while the Injunction Order remains in place and that the Injunction Order would need to be varied or discharged for BOC to agree to release the relevant funds.

Discussion and disposition

3.  In the Skeleton Submissions of the Plaintiff dated 20 November 2024 (“P’s Skeleton”), it was stated that D has been served the Summons and Supporting Affidavit on 11 November 2024. Whilst strictly speaking, unless otherwise directed by the Court, service of the Summons on D is not required pursuant to O 65, r 9 of RDC, where personal service is not required under the rules and D is in default as to acknowledgment of service, P has subsequently supported this assertion by an affirmation of service filed on 27 November 2024.

4.  Given that D has never appeared to contest these proceedings, I acceded to P’s application by letter dated 20 November 2024 to determine the Summons on paper and to vacate the hearing of the Summons scheduled on 28 November 2024.

5.  In the Supporting Affidavit and P’s Skeleton, it was stated that the Injunction Order must be discharged for BOC to release the relevant funds from D’s bank accounts.

6.  However, it is plain that the Injunction Order was only continued up to 12 September 2023 (when the assessment of damages was determined) and was not, nor could it have been (see O 32, r 11 of RDC), continued by any further order of Master Isaac Yung.

7.  Accordingly, I am of the view that the application for discharge of the Injunction Order is misconceived as it is unnecessary when the Injunction Order is plainly no longer in effect.

8.  I therefore will dismiss the Summons with no order as to costs.